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.

Work Health and Safety Law and Policy

The third edition of Work Health and Safety Law and Policy continues to provide a plain English approach to explaining and analysing the law which regulates work health and safety in Australia. Providing broad coverage, this book focuses on the role that legal regulation plays in preventing work-related injury and disease, as well as the way in which the law contributes to rehabilitating and compensating injured and ill workers. This third edition focuses on the national model Work Health and Safety Bill 2009. The provisions of the model Bill are outlined, along with court decisions and other documentation that help interpret the provisions in new legislation enacting the model Bill. There is also a chapter in the book examining the national model Work Health and Safety Regulations 2011, and model codes of practice. The book includes three chapters on common law, statutory workers’ compensation provisions and rehabilitation. Tables summarising the key legal provisions of the major Australian Commonwealth, State and Territory workers’ compensation statutes have been updated and give quick and easy reference to points of legislation.

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.

Decriminalization of Health and Safety at Work in Australia

ABOUT THE BOOK As the title Safety or Profit? suggests, health and safety at work needs to be understood in the context of the wider political economy. This book brings together contributions informed by this view from internationally recognized scholars. It reviews the governance of health and safety at work, with special reference to Australia, Canada, Sweden, and the United Kingdom. Three main aspects are discussed. The restructuring of the labor market: this is considered with respect to precarious work and to gender issues and their implications for the health and safety of workers. The neoliberal agenda: this is examined with respect to the diminished power of organized labor, decriminalization, and new governance theory, including an examination of how well the health-and-safety-at-work regimes put in place in many industrial societies about forty years ago have fared and how distinctive the recent emphasis on self-regulation in several countries really is. The role of evidence: there is a dearth of evidence-based policy. The book examines how policy on health and safety at work is formulated at both company and state levels. Cases considered include the scant regard paid to evidence by an official inquiry into future strategy in Canada; the lack of evidence-based policy and the reluctance to observe the precautionary principle with respect to work-related cancer in the United Kingdom; and the failure to learn from past mistakes in the Deepwater Horizon disaster in the Gulf of Mexico. Intended Audience: Researchers; policymakers, trade union representatives, and officials interested in OHS; postgraduate students of OHS; OHS professionals; regulatory and socio-legal scholars.

Regulating Work

This chapter examines the regulation of ‘work’: principally the circumstances in which labour is engaged and the conditions attaching to the work relationships which are consequently formed and carried on. Fundamentally, this is the subject area labelled ‘labour law’in modern-day legal, academic, and professional discourse. This chapter also explores how some issues in the regulatory literature impact upon this field. One of the central arguments in this chapter is that instrumental regulation in the field of labour law is not a relatively modern phenomenon. Rather, the reading of the historical literature pertaining to labour under earlier economic and social conditions shows that the instrumental regulation of the labour market by the state and its courts has been the dominant form of law in this field for centuries. Readership: academics working on any area of law or in socio-legal research

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.

Safety, courts and crime: occupational safety and health prosecutions in the Magistrates' courts

This paper reports on an empirically based study of occupational safety and health prosecutions in the Magistrates' courts in the State of Victoria, Australia. It examines the way in which the courts construct occupational safety and health issues during prosecutions against alleged offenders, and then theorises the role of the criminal law in health and safety regulation. The paper argues that courts, inspectors, prosecutors and defence counsel are involved in filtering or reshaping occupational safety and health issues during the prosecution process, both pre-trial and in court. An analysis of the pattern of investigation of health and safety offences shows that they 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. This broader context includes the way in which work is organised at the workplace and the quality of occupational safety and health management (the micro context), and the pressures within capitalist production systems for occupational safety and health to be subordinated to production imperatives (the macro context). In particular, during the court-based sentencing process, defence counsel is able to adopt a range of 'isolation' techniques that isolate the incident from its micro and macro contexts, thereby individualising and decontextualising the incident. The paper concludes that the legal system plays a key role in decontextualising and individualising health and safety issues, and that this process is part of the 'architecture' of the legal system, and a direct consequence of the 'form of law'.

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.

A space for spirituality : Dutton Park Community House. Kuril dhagun, State Library of Queensland

A Space for Spirituality: Dutton Park Community House Exhibition of QUT Student Design Work for Murri Watch Men’s Shed, Dutton Park. As designers it is important to work with communities to develop inclusive spaces and be mindful of the diversity of cultures, histories and indeed spirituality. This exhibition includes a selection of proposals from QUT Interior Design students for the adaptation of the Murri Watch Men’s Shed, Dutton Park. The designs respond to local community narratives and environmental qualities, such as site texture, landscape and light to propose a dwelling space for spirituality and gathering.

Prosecution of maritime pirates : the national court is dead—long live the national court

Piracy is one of the main maritime security concerns in the contemporary world. The number of piracy incidents is increasing rapidly, which is highly problematic for maritime security. Although international law provides universal jurisdiction for the prosecution of maritime pirates, the actual number of prosecutions is alarmingly low compared to the number of incidents of piracy. Despite many states becoming parties to the relevant international conventions, they are reluctant to establish the necessary legal and institutional frameworks at the national level for the prosecution of pirates. The growing incidences of piracy and the consequential problems associated with prosecuting pirates have created doubts about the adequacy of the current international legal system, which is fully dependent on national courts for the prosecution of pirates. This article examines the possible ways for ensuring the effective prosecution of pirates. Contrary to the different proposals forwarded by researchers in the wake of Somali piracy for the establishment of international judicial institutions for the prosecution of pirates, this article argues that the operationalization of national courts through the proper implementation of relevant international legal instruments within domestic legal systems is the most viable solution. However, this article submits that the operationalization of national courts will not be very successful following the altruistic model of universal adjudicative jurisdiction. A state may enact legislation implementing universal jurisdiction but will not be very interested in prosecuting a pirate in its national court if it has no relation with the piratical incident. Rather, it will be successful if the global community seriously implement the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA Convention), which obligates the states that have some connection with a piratical incident to prosecute pirates in their national courts.

Lawyers behaving badly in mediations : lessons for legal educators

This article will discuss some real life case examples of what will be termed “lawyers behaving badly” where it will be argued that legal representatives have not performed as effectively as they could have in mediation settings. These instances of “lawyer misbehaviour” will be grouped under several broad headings: the Process Thwarter, the Zealous Adversarial Advocate, the Misguided Advisor, the Distributive Bargainer, the Passive Advocate, and the Legal Takeover. Reflecting on these situations will provide guidance to legal educators as to the specific areas of dispute resolution knowledge and skills that future lawyers need to learn and develop.

Good Practice Report : Postgraduate Research and Coursework Degrees

Over the past decade, enrolments in postgraduate courses in Australian universities have risen by 34% (or from 258,164 in 2004 to 347,363 in 2013) (uCube, 2014). This substantial growth can be attributed to increased demand for postgraduate coursework as continuing professional education, the expansion of Higher Degrees Research (HDR) intakes, and the development of postgraduate research and coursework degrees in new fields. At the same time, the establishment of the Australian Qualification Framework (AQF) and national Tertiary Education Quality and Standards Agency (TEQSA), as well as the internationalisation of postgraduate education, have brought challenges and opportunities to the sector. During the past five years, the Australian Government Office for Learning and Teaching (OLT) and its predecessor bodies have funded a number of projects and Fellowships on postgraduate coursework and research degrees. They span diverse topics–from entry pathways and research training to supporting international and Indigenous students, examination, scoping studies of new and emergent programs, and effective supervision. In 2014 the OLT commissioned this good practice report to review the grants and fellowships conducted between 2009 and 2014. Encompassing twenty-seven learning and teaching projects and fellowships, the aims of this report include providing universities and academics with an overview of the current state of postgraduate study in Australia and the major influences upon it; a coherent overview of funded projects’ findings and outcomes; and a central point to access good practices, resources and tools in summary form. The objectives of this good practice report are to provide: • A literature review, which contextualises the projects within the Australian and international Higher Education environment, emphasises factors that currently influence postgraduate programs, and highlights challenges and opportunities for the sector. It also explains variations in postgraduate course types and definitions within the Australian Qualification Framework (AQF), and identifies key learning and teaching issues as well as good practices identified in scholarly research and position papers. • A collated overview of the twenty-seven national learning and teaching projects and fellowships on postgraduate coursework and research, including a summary of each project’s aims and objectives, methodologies, outcomes and resources. • A summative index of project characteristics (topics, themes and approaches) and inventory of scholarly research outcomes of the completed projects (publications, reports) as well as resources produced (tools, methods, good practice case studies), and their location (URL Links, references, etc.). • A summary of good practices that have been identified from the literature and the findings of completed projects. • A set of recommendations to address remaining gaps in the field and areas in which further work or development are appropriate. Bringing this work together will help enable university course teams to improve the delivery and development of existing postgraduate courses and to develop new ones, and it will provide academics with an overview of good practices and resources for teaching, supervising and supporting postgraduate students.

Examining the neural correlates of choice behavior in a gambling task using steady state topography

The present study investigated the behavioral and neuropsychological characteristics of decision-making behavior during a gambling task as well as how these characteristics may relate to the Somatic Marker Hypothesis and the Frequency of Gain model. The applicability to intertemporal choice was also discussed. Patterns of card selection during a computerized interpretation of the Iowa Gambling Task were assessed for 10 men and 10 women. Steady State Topography was employed to assess cortical processing throughout this task. Results supported the hypothesis that patterns of card selection were in line with both theories. As hypothesized, these 2 patterns of card selection were also associated with distinct patterns of cortical activity, suggesting that intertemporal choice may involve the recruitment of right dorsolateral prefrontal cortex for somatic labeling, left fusiform gyrus for object representations, and the left dorsolateral prefrontal cortex for an analysis of the associated frequency of gain or loss. It is suggested that processes contributing to intertemporal choice may include inhibition of negatively valenced options, guiding decisions away from those options, as well as computations favoring frequently rewarded options.

Steady state visually evoked potential correlates of static and dynamic emotional face processing

While the neural regions associated with facial identity recognition are considered to be well defined, the neural correlates of non-moving and moving images of facial emotion processing are less clear. This study examined the brain electrical activity changes in 26 participants (14 males M = 21.64, SD = 3.99; 12 females M = 24.42, SD = 4.36), during a passive face viewing task, a scrambled face task and separate emotion and gender face discrimination tasks. The steady state visual evoked potential (SSVEP) was recorded from 64-electrode sites. Consistent with previous research, face related activity was evidenced at scalp regions over the parieto-temporal region approximately 170 ms after stimulus presentation. Results also identified different SSVEP spatio-temporal changes associated with the processing of static and dynamic facial emotions with respect to gender, with static stimuli predominately associated with an increase in inhibitory processing within the frontal region. Dynamic facial emotions were associated with changes in SSVEP response within the temporal region, which are proposed to index inhibitory processing. It is suggested that static images represent non-canonical stimuli which are processed via different mechanisms to their more ecologically valid dynamic counterparts.