The Australian Nonprofit Sector Legal and Accounting Almanac 2013

INTRODUCTION CASES For a number of years, Professor Myles McGregor-Lowndes, Frances Hannah and Anne Overell have compiled one to two page summaries of cases involving nonprofit organisations and published them on The Australian Centre for Philanthropy and Nonprofit Studies, Developing Your Organisation (DYO) website.1 You can be alerted of new case summaries as they are posted to the DYO website by subscribing to the ACPNS RSS feed or the ACPNS twitter service.2 There were some very significant cases during 2013, such as Commissioner of Taxation v Cancer & Bowel Research Association (see case notes 2.8.2 and 2.8.11), The Hunger Project case which is under appeal, but could change the face of PBI jurisprudence (see case note 2.8.7) while Home Health Pty Ltd retained the PBI status quo but might have been different if appealed (see case note 2.8.8). For sheer interest there is nothing better in my 30 odd years of reading tax and charity judgements than case involving The Study and Prevention of Psychological Diseases Foundation Incorporated (see case note 2.1.1). It even rivals some of the more bizarre cases from the US jurisdiction of which St Joseph Abbey v Castille (case note 2.10.9) is certainly ‘dead centre’. A set of cases which stand out for attention are those involving New Zealand’s Christchurch Cathedral which anyone with responsibility for heritage-listed buildings should study carefully, for implications in relation to their own circumstances. A number of cases summarised in this Almanac are working their way through the appeals process and care should be taken with their application. In addition, some of the cases are from jurisdictions outside Australia, and readers should exercise caution when considering the implications of these cases for Australian law. LEGISLATION The Almanac includes a review of major statutory amendments during 2013, which are relevant to the nonprofit sector in all Australian jurisdictions. Special thanks must go to Nathan MacDonald and the JusticeConnect team for providing legislative updates for Victoria. SPECIAL ISSUES DURING 2013 A number of legal practitioners have contributed articles on significant legal issues facing nonprofit organisations: charitable trusts giving to government entities (Alice Macdougall); workplace bullying (Tim Longwill); and privacy (James Tan and Nina Brewer). WORLD ROUND-UP Major developments from the UK and Ireland (Kerry O’Halloran), Canada (Peter Broder), New Zealand (Michael Gousmett and Susan Barker) and Jamaica (Frances Hannah) are all summarised in a review of a significant part of the common law charity jurisdictions. WHAT DOES 2014 HOLD The final section moves from looking in the rear view mirror to peering out the front windscreen to discern the reform agenda. The view from the windscreen in 2013 was of considerable reform traffic at the Commonwealth level jostling for a place in the parliamentary agenda. This year is quite different with a smaller number of vehicles ahead, but the potential for significant impact.

A flexible optimisation model for the railway crew scheduling problem

Addressing the Crew Scheduling Problem (CSP) in transportation systems can be too complex to capture all details. The designed models usually ignore or simplify features which are difficult to formulate. This paper proposes an alternative formulation using a Mixed Integer Programming (MIP) approach to the problem. The optimisation model integrates the two phases of pairing generation and pairing optimisation by simultaneously sequencing trips into feasible duties and minimising total elapsed time of any duty. Crew scheduling constraints in which the crew have to return to their home depot at the end of the shift are included in the model. The flexibility of this model comes in the inclusion of the time interval of relief opportunities, allowing the crew to be relieved during a finite time interval. This will enhance the robustness of the schedule and provide a better representation of real-world conditions.

"Improper" caveats and compensation - section 130 of the Land Title Act 1994

This article examines some questions of statutory interpretation as they apply to section 130 of the Land Title Act 1994 (Qld)

The use of headings and marginal notes in interpreting Queensland legislation : appearances can be deceptive

This article considers the rules relating to the use of marginal notes and headings in interpreting Queensland legislation, both in its original form and in reprinted legislation. It also examines the application of the principles of construction as to the use of section headings in the interpretation of provisions of the Criminal Code 1899 (Qld). Finally, it suggests that amendments should be made to the Acts Interpretation Act 1954 (Qld) in order to clarify the position as to the status of marginal notes and headings in statutory interpretation.

Time for a national approach to donor conception in Australia

There is a growing recognition of the interests and rights of individuals conceived using donated gametes in assisted reproductive technology to information about their biological parentage. In Australia these rights vary between jurisdictions according to differing statutory provisions. In February 2011 the Senate's Legal and Constitutional Affairs References Committee published its report on Donor Conception Practices in Australia. The report recommended the development of a nationally consistent approach to donor conception and recommended the enactment of legislation in those Australian jurisdictions without legislation regulating donor conception. This editorial reviews the Senate Committee report and its recommendations and supports calls for a nationally harmonised approach to donor conception in Australia.

Swine flu, doctors and pandemics : Is there a duty to treat during a pandemic?

The swine influenza (H1N1) outbreak in 2009 highlighted the ethical and legal pressures facing general practitioners and health workers in emergency departments in determining the nature and limits of their obligations to their patients and the public. Health workers require guidance on the multiple, overlapping, and at times conflicting legal and ethical duties owed to patients and prospective patients, employers and fellow health workers, and their families. Existing sources of advice on these issues in Australia, by way of statements of medical ethics and other sources of advice, are shown to be in need of further amplification if health workers are to be provided with the certainty and guidance required. Given the complexity of the issues, Australia would therefore benefit from more extensive consultation with the variety of stakeholders involved in these questions if pandemic plans are to smoothly deal with future crises in an ethically and legally sound manner.

Legal rights during pandemics : federalism, rights and public health laws - a view from Australia

Pandemic influenza will cause significant social and economic disruption. Legal frameworks can play an important role in clarifying the rights and duties of individuals, communities and governments for times of crisis. In addressing legal frameworks, there is a need for jurisdictional clarity between different levels of government in responding to public health emergencies. Public health laws are also informed by our understandings of rights and responsibilities for individuals and communities, and the balancing of public health and public freedoms. Consideration of these issues is an essential part of planning for pandemic influenza.

Designing intelligent litigation support tools : The IKBALS perspective

In the legal domain, it is rare to find solutions to problems by simply applying algorithms or invoking deductive rules in some knowledge‐based program. Instead, expert practitioners often supplement domain‐specific knowledge with field experience. This type of expertise is often applied in the form of an analogy. This research proposes to combine both reasoning with precedents and reasoning with statutes and regulations in a way that will enhance the statutory interpretation task. This is being attempted through the integration of database and expert system technologies. Case‐based reasoning is being used to model legal precedents while rule‐based reasoning modules are being used to model the legislation and other types of causal knowledge. It is hoped to generalise these findings and to develop a formal methodology for integrating case‐based databases with rule‐based expert systems in the legal domain.

The human embryo as property? Cryopreservation and the challenges for law

The development of the new reproductive technologies has presented significant challenges for policy makers and law reformers. This article focuses on the particular challenges posed by cryopreservation of embryos. These issues are analysed through discussion of relevant Australian statutory provisions and United States case law. The article concludes with a consideration of whether the property model provides an appropriate framework for reproductive material.

What now?

On her first day as a liaison librarian not so long ago, Kelly Johnson was filled with excitement but also trepidation. Core duties such as learning and teaching support were safely in her comfort zone. Collection management, however, was still more theory than practice.

Analysing the Prospects of a Successful Application Under s 180 of the Property Law Act 1974 (Qld)

Section 180 of the Property Law Act 1974 (Qld) makes provision for an applicant to seek a statutory right of user over a neighbour’s property where such right of use is reasonably necessary in the interests of effective use in any reasonable manner of the dominant land. In recent years, the Queensland courts have been confronted with a number of such applications. Litigation has also been common in New South Wales which has a statutory provision in largely similar terms. This article seeks to identify those factors that have underpinned successful applications, the obstacles that an applicant may encounter and the considerations that have guided the courts when considering the associated issues of compensation and costs.

Civil litigation limitation periods : submission to the Royal Commission into institutional responses to child sexual abuse

This submission makes one simple yet powerful recommendation for law reform to promote justice for survivors of child sexual abuse. It is informed by extensive analyses of the phenomenon of child sexual abuse and its psychological sequelae, legislative time limits and case law across Australia and internationally, the policy reasons underpinning statutory time limits generally, and the need for fairness, certainty and practicability in the legal system. The recommendation is that legislative reform is required in all Australian States and Territories to remove time limitations for civil claims for injuries caused by child sexual abuse.

Measurement of energy expenditure of daily tasks among mothers of young children

There is currently some debate about whether the energy expenditure of domestic tasks is sufficient to confer health benefits. The aim of this study was therefore to measure the energy cost of five activities commonly undertaken by mothers of young children. Seven women with at least one child younger than five years of age spent 15 minutes in each of the following activities: sitting quietly, vacuum cleaning, washing windows, walking at moderate pace (approx 5km/hour), walking with a stroller and grocery shopping in a super-market. Each of the six 'trials' was completed on the same day, in random order. A carefully calibrated portable gas analyser was used to measure oxygen uptake during each activity, and data were converted to units of energy expenditure (METS). Vacuum cleaning, washing windows and walking with and without a stroller were found to be 'moderate intensity activities' (3 to 6 METs), but supermarket shopping did not reach this criterion. The MET values for these activities were similar to those reported in the Compendium of Physical Activities (Ainsworth et al., 2000). However, the energy expenditures of walking, both with and without a stroller, were higher than those reported in the Compendium. The findings suggest that some of the tasks associated with domestic caring duties are conducted at an intensity which is sufficient to confer some health benefit. Such benefits will only accrue however if the daily duration of these activities is sufficient to meet current guidelines.

Crisis on impact : responding to cyber attacks on critical information infrastructures

In the developing digital economy, the notion of traditional attack on enterprises of national significance or interest has transcended into different modes of electronic attack, surpassing accepted traditional forms of physical attack upon a target. The terrorist attacks that took place in the United States on September 11, 2001 demonstrated the physical devastation that could occur if any nation were the target of a large-scale terrorist attack. Therefore, there is a need to protect criticalnational infrastructure and critical information infrastructure. In particular,this protection is crucial for the proper functioning of a modern society and for a government to fulfill one of its most important prerogatives – namely, the protection of its people. Computer networks have many benefits that governments, corporations, and individuals alike take advantage of in order to promote and perform their duties and roles. Today, there is almost complete dependence on private sector telecommunication infrastructures and the associated computer hardware and software systems.1 These infrastructures and systems even support government and defense activity.2 This Article discusses possible attacks on critical information infrastructures and the government reactions to these attacks.

Practice and Procedures - Motor Accident Insurance Act 1994 ss 39 and 57

In Bermingham v Priest [2002] QSC 057 jones J considered the position of persons seeking to claim damages where the Motor Accident Insurance Act 1994 applies prior to its amendment by the Motor Accident Insurance Amendment Act 2000, and where proceedings are brought close to expiration of the statutory limitation period.