International conventions and model laws : their impact on domestic commercial law

Panellist commentary on delivered conference papers on the topic of ‘International Conventions and Model Laws - Their Impact on Domestic Commercial Law’.

Breastfeeding beliefs and practices of African women living in Brisbane and Perth, Australia

The purpose of this study was to explore the experience of breastfeeding among refugee women from Liberia, Sierra Leone, Burundi and the Democratic Republic of Congo living in two major capital cities in Australia. Participants were recruited from their relevant community associations and via a snowballing technique. Thirty-one women took part in either individual interviews or facilitated group discussions to explore their experiences of breastfeeding in their home country and in Australia. Thematic analysis revealed four main themes: cultural breastfeeding beliefs and practices; stigma and shame around breastfeeding in public; ambivalence towards breastfeeding and breastfeeding support. Women who originated from these four African countries highlighted a significant desire for breastfeeding and an understanding that it was the best method for feeding their infants. Their breastfeeding practices in Australia were a combination of practices maintained from their countries of origin and those adopted according to Australian cultural norms. They exemplified the complexity of breastfeeding behaviour and the relationship between infant feeding with economic status and the perceived social norms of the host country. The results illustrate the need for policy makers and health professionals to take into consideration the environmental, social and cultural contexts of the women who are purportedly targeted for the promotion of breastfeeding.

Outline of the Personal Property Securities Act 2009 (Cth)

Australia has new national legislation - the Personal Property Securities Act 2009 (Cth) and the Personal Property Securities Regulations 2010 – which commenced operation on 30 January 2012. The policy objectives of the new legislation are to increase certainty and consistency and to reduce complexity and cost. To achieve this, the legislation treats like transactions alike, by focusing on substance over form, and so removes distinctions between security interests which have been based on their structure. Differences based on the location or nature of the secured property and the debtor’s legal form, as an individual or company, have also disappeared. We now have one single national scheme and one national electronic registration system for all security interests throughout Australia. The Act applies to security interests in tangible and intangible personal property, including those based on some form of title retention which are not security interests under the general law. This legislation rationalises previous laws and bring about substantial changes to this area of law. This paper seeks to explain the principal changes and their implications.

Spatial clusters of suicide in Australia

Background: Understanding the spatial distribution of suicide can inform the planning, implementation and evaluation of suicide prevention activity. This study explored spatial clusters of suicide in Australia, and investigated likely socio-demographic determinants of these clusters. Methods: National suicide and population data at a statistical local area (SLA) level were obtained from the Australian Bureau of Statistics for the period of 1999 to 2003. Standardised mortality ratios (SMR) were calculated at the SLA level, and Geographic Information System (GIS) techniques were applied to investigate the geographical distribution of suicides and detect clusters of high risk in Australia. Results: Male suicide incidence was relatively high in the northeast of Australia, and parts of the east coast, central and southeast inland, compared with the national average. Among the total male population and males aged 15 to 34, Mornington Shire had the whole or a part of primary high risk cluster for suicide, followed by the Bathurst-Melville area, one of the secondary clusters in the north coastal area of the Northern Territory. Other secondary clusters changed with the selection of cluster radius and age group. For males aged 35 to 54 years, only one cluster in the east of the country was identified. There was only one significant female suicide cluster near Melbourne while other SLAs had very few female suicide cases and were not identified as clusters. Male suicide clusters had a higher proportion of Indigenous population and lower median socio-economic index for area (SEIFA) than the national average, but their shapes changed with selection of maximum cluster radii setting. Conclusion: This study found high suicide risk clusters at the SLA level in Australia, which appeared to be associated with lower median socio-economic status and higher proportion of Indigenous population. Future suicide prevention programs should focus on these high risk areas.

The emerging framework of cross-border insolvency in and around Australia : Saad Investments, Japan Airlines and Lehman Brothers – part one

Recent decades have witnessed a global acceleration of legislative and private sector initiatives to deal with Cross-Border insolvency. Legislative institutions include the various national implementations of the Model Law on Cross-Border Insolvency (Model Law) published by the United Nations Commission on International Trade (UNCITRAL).3 Private mechanisms include Cross-Border protocols developed and utilised by insolvency professionals and their advisers (often with the imprimatur of the judiciary), on both general and ad hoc bases. The Asia Pacific region has not escaped the effect of those developments, and the economic turmoil of the past few years has provided an early test for some of the emerging initiatives in that region. This two-part article explores the operation of those institutions through the medium of three recent cases.

The emerging framework of cross-border insolvency in and around Australia : Saad Investments, Japan Airlines and Lehman Brothers – Part Two

Recent decades have witnessed a global acceleration of legislative and private sector initiatives to deal with Cross-Border insolvency. Legislative institutions include the various national implementations of the Model Law on Cross-Border Insolvency (Model Law) published by the United Nations Commission on International Trade (UNCITRAL).3 Private mechanisms include Cross-Border protocols developed and utilised by insolvency professionals and their advisers (often with the imprimatur of the judiciary), on both general and ad hoc bases. The Asia Pacific region has not escaped the effect of those developments, and the economic turmoil of the past few years has provided an early test for some of the emerging initiatives in that region. This two-part article explores the operation of those institutions through the medium of three recent cases.

Nutritional status and dietary intake of acute care patients : results from the Nutrition Care Day Survey 2010

Background & aims: One aim of the Australasian Nutrition Care Day Survey was to determine the nutritional status and dietary intake of acute care hospital patients. Methods: Dietitians from 56 hospitals in Australia and New Zealand completed a 24-h survey of nutritional status and dietary intake of adult hospitalised patients. Nutritional risk was evaluated using the Malnutrition Screening Tool. Participants ‘at risk’ underwent nutritional assessment using Subjective Global Assessment. Based on the International Classification of Diseases (Australian modification), participants were also deemed malnourished if their body mass index was <18.5 kg/m2. Dietitians recorded participants’ dietary intake at each main meal and snacks as 0%, 25%, 50%, 75%, or 100% of that offered. Results: 3122 patients (mean age: 64.6 ± 18 years) participated in the study. Forty-one percent of the participants were “at risk” of malnutrition. Overall malnutrition prevalence was 32%. Fifty-five percent of malnourished participants and 35% of well-nourished participants consumed ≤50% of the food during the 24-h audit. “Not hungry” was the most common reason for not consuming everything offered during the audit. Conclusion: Malnutrition and sub-optimal food intake is prevalent in acute care patients across hospitals in Australia and New Zealand and warrants appropriate interventions.

Extreme architecture : can architects future proof us against fire and flood.

In the face of Australia’s disaster-prone environment, architects Ian Weir and James Davidson are reconceptualising how our residential buildings might become more resilient to fire, flood and cyclone. With their first-hand experience of natural disasters, James, director of Emergency Architects Australia (EAA), and Ian, one of Australia’s few ‘bushfire architects’, discuss the ways we can design with disaster in mind. Dr Ian Weir is one of Australia’s few ‘bushfire architects’. Exploring a holistic ‘ground up’ approach to bushfire where landscape, building design and habitation patterns are orchestrated to respond to site-specific fire characteristics. Ian’s research is developed through design studio teaching at QUT and through built works in Western Australia’s fire prone forests and heathlands.

The exemplification of governance principles within state asset management laws and policies : the case of Indonesia

Efficient state asset management is crucial for governments as they facilitate the fulfillment of their public functions, which include the provision of essential services and other public administration support. In recent times economies internationally and particularly in South east Asia, have displayed increased recognition of the importance of efficiencies across state asset management law, policies and practice. This has been exemplified by a surge in notable instances of reform in state asset management. A prominent theme in this phenomenon is the consideration of governance principles within the re-conceptualization of state asset management law and related policy, with many countries recognizing variability in the quality of asset governance and opportunities for profit as being critical factors. This issue is very current in Indonesia where a major reform process in this area has been confirmed by the establishment of a new Directorate of State Asset Management. The incumbent Director-General of State Asset Management has confirmed a re-emphasis on adherence to governance principles within applicable state asset management law and policy reform. This paper reviews aspects of the challenge of reviewing and reforming Indonesian practice within state asset management law and policy specifically related to public housing, public buildings, parklands, and vacant land. A critical issue in beginning this review is how Indonesia currently conceptualizes the notion of asset governance and how this meaning is embodied in recent changes in law and policy and importantly in options for future change. This paper discusses the potential complexities uniquely Indonesian characteristics such as decentralisation and regional autonomy regime, political history, and bureaucratic culture.

The legal nature of justice in REDD+

Formation of Reduced Emissions from Deforestation and Degradation (REDD+) policy within the international climate regime has raised a number of discussions about ‘justice’. REDD+ aims to provide an incentive for developing countries to preserve or increase the amount of carbon stored in their forested areas. Governance of REDD+ is multi-layered: at the international level, a guiding framework must be determined; at the national level, strong legal frameworks are a pre-requisite to ensure both public and private investor confidence and at the sub-national level, forest-dependent peoples need to agree to participate as stewards of forest carbon project areas. At the international level the overall objective of REDD+ is yet to be determined, with competing mitigation, biological and justice agendas. Existing international law pertaining to the environment (international environmental principles and law, IEL) and human rights (international human rights law, IHRL) should inform the development of international and national REDD+ policy especially in relation to ensuring the environmental integrity of projects and participation and benefit-sharing rights for forest dependent communities. National laws applicable to REDD+ must accommodate the needs of all stakeholders and articulate boundaries which define their interactions, paying particular attention to ensuring that vulnerable groups are protected. This paper i) examines justice theories and IEL and IHRL to inform our understanding of what ‘justice’ means in the context of REDD+, and ii) applies international law to create a reference tool for policy-makers dealing with the complex sub-debates within this emerging climate policy. We achieve this by: 1) Briefly outlining theories of justice (for example – perspectives offered by anthropogenic and ecocentric approaches, and views from ‘green economics’). 2) Commenting on what ‘climate justice’ means in the context of REDD+. 3) Outlining a selection of IEL and IHRL principles and laws to inform our understanding of ‘justice’ in this policy realm (for example – common but differentiated responsibilities, the precautionary principle, sovereignty and prevention drawn from the principles of IEL, the UNFCCC and CBD as relevant conventions of international environmental law; and UNDRIP and the Declaration on the Right to Development as applicable international human rights instruments) 4) Noting how this informs what ‘justice’ is for different REDD+ stakeholders 5) Considering how current law-making (at both the international and national levels) reflects these principles and rules drawn from international law 6) Presenting how international law can inform policy-making by providing a reference tool of applicable international law and how it could be applied to different issues linked to REDD+. As such, this paper will help scholars and policy-makers to understand how international law can assist us to both conceptualise and embody ‘justice’ within frameworks for REDD+ at both the international and national levels.

Australia and Forest Carbon Partnerships : Indigenous Land Rights

One of the ways in which indigenous communities seek justice is through the formal recognition of their sovereign rights to land. Such recognition allows indigenous groups to maintain a physical and spiritual connection with their land and continue customary management of their land. Indigenous groups world over face significant hurdles in getting their customary rights to land recognized by legal systems. One of the main difficulties for indigenous groups in claiming customary land rights is the existence of a range of conflicting legal entitlements attaching to the land in question. In Australia, similar to New Zealand and Canada legal recognition to customary land is recognized through a grant of native title rights or through the establishment of land use agreement. In other jurisdictions such as Indonesia and Papua New Guinea a form of customary land title has been preserved and is recognized by the legal system. The implementation of REDD+ and other forms of forest carbon investment activities compounds the already complex arrangements surrounding legal recognition of customary land rights. Free, prior and informed consent of indigenous groups is essential for forest carbon investment on customary land. The attainment of such consent in practice remains challenging due to the number of conflicting interests often associated with forested land. This paper examines Australia’s experience in recongising indigenous land rights under its International Forest Carbon Initiative and under its domestic Carbon Credits (Carbon Farming Initiative) Act (Australia) 2011. Australia’s International Forest Carbon initiative has a budget of $273 million dollars. In 2008 the governments of Australia and Indonesia signed the Indonesia-Australia Forest Carbon Partnership Agreement. This paper will examine the indigenous land tenure and justice lessons learned from the implementation of the Kalimantan Forest and Climate Partnership (KFCP). The KFCP is $30 million dollar project taking place over 120,000 hectares of degraded and forested peatland in Central Kalimantan, Indonesia. The KFCP project site contains seven villages of the Dayak Ngdu indigenous people. In 2011 Australia established a domestic Forest Carbon Initiative, which seeks to provide new economic opportunities for farmers, forest growers and indigenous landholders while helping the environmental by reducing carbon pollution. This paper will explore the manner in which indigenous people are able to participate within these scheme noting the limits and opportunities in deriving co-benefits for indigenous people in Australia under this scheme.

The influence of neighbourhood disadvantage on smoking cessation and its contribution to inequalities in smoking status

Introduction and aims: Individual smokers from disadvantaged backgrounds are less likely to quit, which contributes to widening inequalities in smoking. Residents of disadvantaged neighbourhoods are more likely to smoke, and neighbourhood inequalities in smoking may also be widening because of neighbourhood differences in rates of cessation. This study examined the association between neighbourhood disadvantage and smoking cessation and its relationship with neighbourhood inequalities in smoking. Design and methods: A multilevel longitudinal study of mid-aged (40-67 years) residents (n=6915) of Brisbane, Australia, who lived in the same neighbourhoods (n=200) in 2007 and 2009. Neighbourhood inequalities in cessation and smoking were analysed using multilevel logistic regression and Markov chain Monte Carlo simulation. Results: After adjustment for individual-level socioeconomic factors, the probability of quitting smoking between 2007 and 2009 was lower for residents of disadvantaged neighbourhoods (9.0%-12.8%) than their counterparts in more advantaged neighbourhoods (20.7%-22.5%). These inequalities in cessation manifested in widening inequalities in smoking: in 2007 the between-neighbourhood variance in rates of smoking was 0.242 (p≤0.001) and in 2009 it was 0.260 (p≤0.001). In 2007, residents of the most disadvantaged neighbourhoods were 88% (OR 1.88, 95% CrI 1.41-2.49) more likely to smoke than residents in the least disadvantaged neighbourhoods: the corresponding difference in 2009 was 98% (OR 1.98 95% CrI 1.48-2.66). Conclusion: Fundamentally, social and economic inequalities at the neighbourhood and individual-levels cause smoking and cessation inequalities. Reducing these inequalities will require comprehensive, well-funded, and targeted tobacco control efforts and equity based policies that address the social and economic determinants of smoking.

Back to the future : prohibiting surrogacy for singles, same-sex and shorter-term heterosexual couples in Queensland

This article considers the regulatory position concerning altruistic surrogacy in Queensland, focusing on the intended changes to the current legal framework announced by the government in June 2012. The previous government had made significant progress by reforming surrogacy laws in 2010. However, that progress is at risk of being reversed. The proposed changes to the law would make it a criminal offence to enter into an altruistic surrogacy arrangement for certain individuals or couples. If enacted, the offence would only apply in altruistic surrogacy cases where the intended parent or parents are either single, in a same-sex relationship, or are in a heterosexual relationship of less than two years. Moreover, if enacted, the offence would apply extra-territorially. The authors argue that these changes represent a retrograde step for the law and urge the government to reconsider. This is based on the fact that they are out of step with current social attitudes, are contrary to the spirit of anti-discrimination laws, and that they are unjustified in terms of child welfare concerns.