‘Structuring’ judicial sentencing discretion : consistency, guidance or pandering to the punitive?

Until quite recently, most Australian jurisdictions gave statutory force to the principle of imprisonment as a sanction of last resort, reflecting its status as the most punitive sentencing option open to the court.1 That principle gave primary discretion as to whether incarceration was the most appropriate means of achieving the purpose of a sentence to the sentencing court, which received all of the information relevant to the offence, the offender and any victim(s). The disestablishment of this principle is symptomatic of an increasing erosion of judicial discretion with respect to sentencing, which appears to be resulting in some extremely punitive consequences.

Australian boarding school supervisors : a voluntary position?

This paper aims to examine how Australian boarding supervisors (particularly non-teachers) are defined in regards to employment. The practices of Queensland’s School X (real name withheld) are used as an example of the difficult issues involved – although whether this case study is repeated elsewhere in the industry would take further research. The paper illustrates that the employment of boarding supervisors is dealt with at a basic level by a modern award, however its provisions do not represent what occurs in practice. If there is no enterprise bargain which improves upon the award, two possible explanations are put forward to explain the difference between award conditions and practice. The first is that the contract between boarding supervisors may not be one of employment. Relevant case law regarding whether a person is an employee or independent contractor is examined, and when applied to a typical boarding situation, it is concluded that any contract should be one of employment. The second explanation is that there is no legal contract at all between boarding supervisors and a school. Drawing on School X’s example where supervisors were classed as ‘volunteers’, the paper examines what the legal effect of that term might be. It could be seen to be a denial of an intention to create legal relations, a critical element in contract formation. Again, important cases are analysed on the topic of intention, and applied to a boarding context. It is argued that given the objective circumstances of a typical agreement, there is an intention to create legal relations. In particular, a little known Queensland case involving the non-employment status of boarding supervisors, which may be the cause of the confusion, is critically examined to determine its usefulness in answering the issue. Finally, the implications of not classifying boarding supervisors as employees are briefly discussed.

Detoxification enzyme activities (CYP1A1 and GST) in the skin of humpback whales as a function of organochlorine burdens and migration status

The activities of glutathione-s-transferase (GST) and cytochrome P-450 1A1 (CYP1A1) enzymes were measured in freshly extracted epidermis of live-biopsied, migrating, southern hemisphere humpback whales (Megaptera novaeangliae). The two quantified enzyme activities did not correlate strongly with each other. Similarly, neither correlated strongly with any of the organochlorine compound groups previously measured in the superficial blubber of the sample biopsy core, likely reflecting the anticipated low levels of typical aryl-hydrocarbon receptor ligands. GST activity did not differ significantly between genders or between northward (early migration) or southward (late migration) migrating cohorts. Indeed, the inter-individual variability in GST measurements was relatively low. This observation raises the possibility that measured activities were basal activities and that GST function was inherently impacted by the fasting state of the sampled animals, as seen in other species. These results do not support the implementation of CYP1A1 or GST as effective biomarkers of organochlorine contaminant burdens in southern hemisphere populations of humpback whales as advocated for other cetacean species. Further investigation of GST activity in feeding versus fasting cohorts may, however, provide some insight into the fasting metabolism of these behaviourally adapted populations.

Evaluation of legal capacity by doctors and lawyers : the need for collaborative assessment

• Balancing the interests of individual autonomy and protection is an escalating challenge confronting an ageing Australian society. • One way this is manifested is in the current ad hoc and unsatisfactory way that capacity is assessed in the context of wills, enduring powers of attorney and advance health directives. • The absence of nationally accepted assessment guidelines results in terminological and methodological miscommunication and misunderstanding between legal and medical professionals. • Expectations between legal and medical professionals can be clarified to provide satisfactory capacity assessments based upon the development of a sound assessment paradigm

Migrants, refugees and mobility : how useful are information communication technologies in the first phase of resettlement?

The rate at which people move and resettle around the world is unprecedented. Mobility and resettlement is now greatly assisted by the use of inexpensive internet communication technologies (ICTs) for a wide variety of functions: to communicate locally and across territories, for localised information seeking, geo – locational mapping and for forging new social connections in host countries and cities. This article is based on a qualitative study of newly arrived migrants and mobile people from non English speaking backgrounds (NESB) to the city of Brisbane, Australia and investigates how the internet is used to assist the initial period of settling into the city. As increasing amounts of essential information is placed online, the study asks how people from NESB communities manage to negotiate the types of information they require during the early stages of resettlement, given varying levels of access to ICTs, digital and language literacy. The study finds that the internet is widely used for specific location information seeking (such as accommodation and job-seeking), but this is often supplemented with other non-mediated sources of information. The study identified implications for social policy in regard to the resourcing and access of information. While findings are specific to the study location, it is feasible that the patterns of internet use for resettlement have relevance in a broader context.

Saliva proteome research: current status and future outlook

Human saliva harbours proteins of clinical relevance and about 30% of blood proteins are also present in saliva. This highlights that saliva can be used for clinical applications just as urine or blood. However, the translation of salivary biomarker discoveries into clinical settings is hampered by the dynamics and complexity of the salivary proteome. This review focuses on the current status of technological developments and achievements relating to approaches for unravelling the human salivary proteome. We discuss the dynamics of the salivary proteome, as well as the importance of sample preparation and processing techniques and their influence on downstream protein applications; post-translational modifications of salivary proteome and protein: protein interactions. In addition, we describe possible enrichment strategies for discerning post-translational modifications of salivary proteins, the potential utility of selected-reaction-monitoring techniques for biomarker discovery and validation, limitations to proteomics and the biomarker challenge and future perspectives. In summary, we provide recommendations for practical saliva sampling, processing and storage conditions to increase the quality of future studies in an emerging field of saliva clinical proteomics. We propose that the advent of technologies allowing sensitive and high throughput proteome-wide analyses, coupled to well-controlled study design, will allow saliva to enter clinical practice as an alternative to blood-based methods due to its simplistic nature of sampling, non-invasiveness, easy of collection and multiple collections by untrained professionals and cost-effective advantages.

Safe Design Project : Review of occupational health and safety legal requirements for designers, manufacturers, suppliers, importers and other relevant obligation bearers

In seeking to achieve Australian workplaces free from injury and disease NOHSC works to lead and coordinate national efforts to prevent workplace death, injury and disease. We seek to achieve our mission through the quality and relevance of information we provide and to influence the activities of all parties with roles in improving Australia’s OHS performance. NOHSC has five strategic objectives: • improving national data systems and analysis, • improving national access to OHS information, • improving national components of the OHS and related regulatory framework, • facilitating and coordinating national OHS research efforts, • monitoring progress against the National OHS Improvement Framework. This publication is a contribution to achieving those objectives

Occupational Health and Safety, Courts and Crime: the legal construction of occupational health and safety offences in Victoria

This book reports on an empirically-based study of the manner in which the Magistrates' Courts in Victoria, construct occupational health and safety (OHS) issues when hearing prosecutions for offences under the Victorian OHS legislation. Prosecution has always been a controversial element in the enforcement armoury of OHS regulators, but at the same time it has long been argued that the low level of fines imposed by courts has had an important chilling effect on the OHS inspectorate's enforcement approaches, and on the impact of OHS legislation. Using a range of empirical research methods, including three samples of OHS prosecutions carried out in the Victorian Magistrates' Courts, Professor Johnstone shows how courts, inspectors, prosecutors and defence counsel are involved in filtering or reshaping OHS issues during the prosecution process, both pre-trial and in court. He argues that OHS offences are constructed by focusing on "events", in most cases incidents resulting in injury or death. This "event-focus" ensures that the attention of the parties is drawn to the details of the incident, and away from the broader context of the event. During the court-based sentencing process defence counsel is able to adopt a range of techniques which isolate the incident from its micro and macro contexts, thereby individualising and decontextualising the incident.

Beyond Employment: The Legal Regulation of Work Relationships

Australian labour law, at least from the mid-twentieth century, was dominated by the employment paradigm: the assumption that labour law’s scope was the regulation of employment relationships –full-time and part-time, and continuing, fixed term or casual – with a single (usually corporate) entity employer. But no sooner had the employment paradigm established and consolidated its shape, it began to fall apart. Since the 1980s there has been a significant growth of patterns of work that fall outside this paradigm, driven by organisational restructuring and management techniques such as labour hire, sub-contracting and franchising. Beyond Employment analyses the way in which Australian labour law is being reframed in this shift away from the pre-eminence of the employment paradigm. Its principal concern is with the legal construction and regulation of various forms of contracting, including labour hire arrangements, complex contractual chains and modern forms like franchising, and of casual employment. It outlines the current array of work relationships in Australia, and describes and analyses the way in which those outside continuous and fixed term employment are regulated. The book seeks to answer the central question: How does law (legal rules and principles) construct these work relationships, and how does it regulate these relationships? The book identifies the way in which current law draws the lines between the various work relationships through the use of contract and property ownership, and describes, analyses and synthesises the legal rules that govern these different forms of work relationships. The legal rules that govern work relationships are explored through the traditional lens of labour law’s protective function, principally in four themes: control of property, and the distribution of risks and rewards; maintenance of income security; access to collective voice mechanisms, focusing on collective bargaining; and health, safety and welfare. The book critically evaluates the gaps in the coverage and content of these rules and principles, and the implications of these gaps for workers. It also reflects upon the power relationships that underpin the work arrangements that are the focus of the book and that are enhanced through the laws of contract and property. Finally, it frames an agenda to address the gaps and identified weaknesses insofar as they affect the economic wellbeing, democratic voice, and health and safety of workers.

The legal concept of work-related injury and disease in Australian OHS and workers' compensation systems

This paper analyses the concept of ‘work-relatedness’ in Australian workers’ compensation and occupational health and safety (OHS) systems. The concept of work-relatedness is important because it is a crucial element circumscribing the limits of the protection afforded to workers under the preventative OHS statutes, and is a threshold element which has to be satisfied before an injured or ill worker can recover statutory compensation. While the preventive and compensatory regimes do draw on some similar concepts of work-relatedness, as this paper will illustrate, there are significant differences both between, and within, these regimes.

Changing legal education: rhetoric, realty, and prospects for the future

This article examines the extent to which Australian legal education has transcended the traditional model of legal education which dominated most law schools until the mid-1980s, and outlines a modest agenda which might guide further development in legal education in Australia. The article outlines challenges to the traditional model, changes in legal education following the 1987 Pearce Report, and identifies factors that impede lasting and profound change. It concludes by proposing a series of issues which might be addressed by law schools seeking to provide a learning environment in which students can actively engage in learning about law, in a framework that does not simply prepare students for private legal practice.

The court and the factory the legal construction of occupational health and safety offences in Victoria

This thesis reports on an empirically based study of the manner in which Victorian Magistrates Courts constructed occupational health and safety (OHS) issues when hearing prosecutions for offences under the Industrial Safety, Health and Welfare Act 1981 (the ISHWA) and the Occupational Health and Safety Act 1985 (OHSA) from 1983 to 1991. These statutes established OHS standards for employers and other relevant parties. The State government enforced these standards through an OHS inspectorate which had a range of enforcement powers, including prosecution. After outlining the historical development of Victoria’s OHS legislation, the magistracy’s historical role in its enforcement, and the development of an enforcement culture in which inspectors viewed prosecution as a last resort, the study shows how the key provisions of the ISHWA and OHSA required occupiers of workplaces and employers to provide and maintain safe systems of work, including the guarding of dangerous machinery. Using a wide range of empirical research methods and legal materials, it shows how the enforcement policies, procedures and practices of the inspectorate heavily slanted inspectors workplace investigations and hence prosecutions towards a restricted and often superficial, analysis of incidents (or “events”) most of which involved injuries on machinery. There was evidence, however, that after the establishment of the Central Investigation Unit in 1989 cases were more thoroughly investigated and prosecuted. From 1990 the majority of prosecutions were taken under the employer’s general duty provisions, and by 1991 there was evidence that prosecutions were focusing on matters other than machinery guarding.

Relationship between EGFR expression, EGFR mutation status, and the efficacy of chemotherapy plus cetuximab in FLEX study patients with advanced non-small-cell lung cancer

INTRODUCTION: The phase III FLEX study (NCT00148798) in advanced non-small-cell lung cancer indicated that the survival benefit associated with the addition of cetuximab to cisplatin and vinorelbine was limited to patients whose tumors expressed high levels of epidermal growth factor receptor (EGFR) (immunohistochemistry score of >/=200; scale 0-300). We assessed whether the treatment effect was also modulated in FLEX study patients by tumor EGFR mutation status. METHODS: A tumor mutation screen of EGFR exons 18 to 21 included 971 of 1125 (86%) FLEX study patients. Treatment outcome in low and high EGFR expression groups was analyzed across efficacy endpoints according to tumor EGFR mutation status. RESULTS: Mutations in EGFR exons 18 to 21 were detected in 133 of 971 tumors (14%), 970 of which were also evaluable for EGFR expression level. The most common mutations were exon 19 deletions and L858R (124 of 133 patients; 93%). In the high EGFR expression group (immunohistochemistry score of >/=200), a survival benefit for the addition of cetuximab to chemotherapy was demonstrated in patients with EGFR wild-type (including T790M mutant) tumors. Although patient numbers were small, those in the high EGFR expression group whose tumors carried EGFR mutations may also have derived a survival benefit from the addition of cetuximab to chemotherapy. Response data suggested a cetuximab benefit in the high EGFR expression group regardless of EGFR mutation status. CONCLUSIONS: The survival benefit associated with the addition of cetuximab to first-line chemotherapy for advanced non-small-cell lung cancer expressing high levels of EGFR is not limited by EGFR mutation status.