Utmost good faith in insurance : reform overdue?

Considerable attention has been devoted to the duty or doctrine of utmost good faith in the academic literature and in the courts. This attention ranges from an analysis of the precise legal basis for the duty through a consideration of the continuing nature of that duty in the post-contract environment.It is quite clear that all contracts of insurance are subject to this duty of utmost good faith. What is less clear and certain are the incidents attendant upon such a duty and the scope of the obligations that such a duty imposes. This article examines the relative positions that have been reached in England and Australia and concludes with some recommendations for legislative reform to this area of the law.

Regulatory approaches to genetic testing in insurance

Rapid advancements in the field of genetic science have engendered considerable debate, speculation, misinformation and legislative action worldwide. While programs such as the Human Genome Project bring the prospect of seemingly miraculous medical advancements within imminent reach, they also create the potential for significant invasions of traditional areas of privacy and human dignity through laying the potential foundation for new forms of discrimination in insurance, employment and immigration regulation. The insurance industry, which has of course, traditionally been premised on discrimination as part of its underwriting process, is proving to be the frontline of this regulatory battle with extensive legislation, guidelines and debate marking its progress.

Changes in accountancy costs for Tasmanian SMEs implementing computerised accounting systems

There have been powerful incentives for Tasmanian Small and Medium-sized Enterprises (SMEs) to adopt information technology to enable them to remain competitive and to comply with legislative regulations. This research study was undertaken to establish whether SMEs implementing computerised accounting systems have a subsequent change in their external accountancy fees. The research study employed a quantitative methodology using survey questionnaires. The study found that in less than 3% of cases SMEs reported a decrease in accountancy fees, in almost 45% of cases the organisation actually experienced a slight to substantial fee increase while 52% reported no change in accountancy fees.

The Australian nonprofit sector legal almanac 2009, ACPNS Working Paper 49

There are a number of publications in Australian which summarises annual developments n the law for business or various industries, but little is available in accessible form for nonprofit staff, boards or volunteers. This publication seeks to fill that gap by bringing together in one place case reports and significant legislative initiatives.

Disclosure and concealment in consumer insurance contracts

This book provides an in-depth examination of the theoretical,legal, social and economic foundations to disclosure and concealment of information in relation to the formation of consumer insurance contracts. A comparative treatment of this issue is undertaken with particular attention given to the judicial and legislative approaches adopted in the United Kingdom, the United States of America, Australia and New Zealand.

Charities, civil society and the charity law reviews on the island of Ireland

This article considers the opportunity, presented by the coincidence of simultaneous charity law reviews in the two jurisdictions on the island of Ireland, for an adjustment of charity law frameworks to maximise appropriate and effective charitable activity within each jurisdiction,while also facilitating the coordination of some such activity between both. It examines the nature of civil society and charity law, and the relationship between them. The article argues that a creative legislative response to this opportunity could address themes of social inclusion common to both jurisdictions and thereby contribute to the consolidation of civil society on this island.

Preliminary review of over-regulation in Australian financial services

This article examines a preliminary review and the limited evidence of over-regulation in Australian financial services. The 1997 Wallis Report and the CLERP 6 paper resulted in the amendments to Ch 7 of the Corporations Act 2001 (Cth) by the Financial Services Reform Act. Nearly a decade later the system based upon 'one-size fits all' dual track regime and a consistent licensing regime has greatly increased the costs of compliance. In the area of enforcement there has not been a dramatic change to the effective techniques applied by ASIC over other agencies such as APRA. In particular there are clear economic arguments, as well as international experiences which state that a single financial services regulator is more effective than the multi-layered approach adopted in Australia. Finally, in the superannuation area of financial services, which is worth A$800 billion there is unnecessary dual licensing and duplicated regulation with little evidence of any consumer-member benefit but at a much greater cost

Australian torts laws

"Provides a comprehensive overview of the law of torts for law students. The legislative reform brought about by the IPP Committee recommendations are included and commented upon." -- Libraries Australia

Advance Directives and the Promotion of Autonomy: a Comparative Australian Statutory Analysis

Legislation regulating advance directives exists in six Australian jurisdictions. In all of these jurisdictions, legislation was enacted to enshrine the common law right of a competent adult to refuse treatment in advance, even if that treatment was required to sustain life. It was thought that enshrining the common law would also enshrine the principle of autonomy on which the common law was based. This article explores whether this is the case by examining the legislative restrictions that are imposed on a competent adult who wishes to complete an advance directive refusing treatment. The article reviews the legislation in all Australian jurisdictions and concludes that, while many of the legislative restrictions can be justified, many cannot as they effectively erode rather than promote the right of a competent adult to refuse treatment.

Advance Directives Refusing Treatment as an Expression of Autonomy: Do the Courts Practise What They Preach?

The principle of autonomy is at the heart of the right of a competent individual to make an advance directive that refuses life-sustaining medical treatment, and to have that directive complied with by medical professionals. That right is protected by both the common law and, to an extent, by legislation that has been enacted in the United Kingdom and many jurisdictions in Australia. The courts have a critical role in protecting that autonomy, both in those jurisdictions in which the common law continues to operate, and in those jurisdictions which are now governed by statute, and in which judicial determinations will need to be made about legislative provisions. The problem explored in this article is that while the judiciary espouses the importance of autonomy in its judgments, that rhetoric is frequently not reflected in the decisions that are reached. In the United Kingdom and Australia, there is a relatively small number of decisions that consider the validity and applicability of advance directives that refuse life-sustaining medical treatment. This article critically evaluates all of the publicly available decisions and concludes that there is cause for concern. In some cases, there has been an unprincipled evolution of common law principles, while in others there has been inappropriate adjudication through operational irregularities or failure to apply correct legal principles. Further, some decisions appear to be based on a strained interpretation of the facts of the case. The apparent reluctance of some members of the judiciary to give effect to advance directives that refuse treatment is also evidenced by the language used in the judgments. While the focus of this article is on common law decisions, reference will also be made to legislation and the extent to which it has addressed some of the problems identified in this article.

Behavioural biases and information disclosure laws relating to residential property sales : narrowing the gap between existing laws and calls for future reforms

Market failures involving the sale of complex merchandise, such as residential property, financial products and credit, have principally been attributed to information asymmetries. Existing legislative and regulatory responses were developed having regard to consumer protection policies based on traditional economic theories that focus on the notion of the ‘rational consumer’. Governmental responses therefore seek to impose disclosure obligations on sellers of complex goods or products to ensure that consumers have sufficient information upon which to make a decision. Emergent research, based on behavioural economics, challenges traditional ideas and instead focuses on the actual behaviour of consumers. This approach suggests that consumers as a whole do not necessarily benefit from mandatory disclosure because some, if not most, consumers do not pay attention to the disclosed information before they make a decision to purchase. The need for consumer policies to take consumer characteristics and behaviour into account is being increasingly recognised by governments, and most recently in the policy framework suggested by the Australian Productivity Commission

Towards compatible and integrated airport and regional land use planning in Australia

Over the past decade privatised capital city airports in Australia have planned developed a range of non aviation commercial and retail land uses on airport land. Many surrounding municipalities consider this development in conflict with existing regional land use planning. Conversely airport operators are alarmed at continued urban consolidation and encroachment of incompatible regional development. Land use planning within and surrounding Australian capital city airports does not support compatible and integrated land use. It is currently a fragmented process due to: 1) current legislative and policy frameworks; 2) competing stakeholder priorities and interests; and 3) inadequate coordination and disjointed decision-making. This paper will examine privatised Australian airport development and consider three case studies to detail the context of airport and regional land use planning. A series of stakeholder workshops have served to inform the procedural dynamics and relationships between airport and regional decision-making. This exploratory research will assist in informing the knowledge gaps between aviation, airport development and broader urban land use policy. This paper will provide recommendations to enhance approaches to land use planning for airports and adjacent metropolitan regions in Australia and overseas.

Energy polarization and popular representation: Evidence from the Russian Duma

In this article we introduce the term “energy polarization” to explain the politics of energy market reform in the Russian Duma. Our model tests the impact of regional energy production, party cohesion and ideology, and electoral mandate on the energy policy decisions of the Duma deputies (oil, gas, and electricity bills and resolution proposals) between 1994 and 2003. We find a strong divide between Single-Member District (SMD) and Proportional Representation (PR) deputies High statistical significance of gas production is demonstrated throughout the three Duma terms and shows Gazprom's key position in the post-Soviet Russian economy. Oil production is variably significant in the two first Dumas, when the main legislative debates on oil privatization occur. There is no constant left–right continuum, which is consistent with the deputies' proclaimed party ideology. The pro- and anti-reform poles observed in our Poole-based single dimensional scale are not necessarily connected with liberal and state-oriented regulatory policies, respectively. Party switching is a solid indicator of Russia's polarized legislative dynamics when it comes to energy sector reform.

The researcher’s perspective on procuring public works projects

Purpose: As part of a comprehensive research study looking at implementing PPPs, interviews with experienced researchers were conducted to realize their views on private sector involvement in public works projects. Design / methodology / approach: Amongst these interviews, five were launched with academics from Hong Kong and Australia, and two were conducted with Legislative Councillors of the Hong Kong Special Administration Region (HKSAR) government. Findings: The interview findings show that both Hong Kong and Australian interviewees had previously conducted some kind of research in the field of PPP. The interviewees highlighted that “Different risk profiles” and “Private sector more innovative / efficient” were the main differences between projects that were procured by PPP and traditionally. Other differences include risk transfer. In a PPP arrangement the public sector passes on a substantial amount of the project risks to the private sector, whereas in a traditional case the public sector would take the largest responsibility in bearing these risks. Another common feature of the private sector is that they tend to be more efficient and innovative when compared to the public sector hence their expertise is often reflected in PPP projects. The interviewees agreed that the key performance indicators for PPP projects were unique depending on the individual project. The critical success factors mentioned by both groups of interviewees included “Transparent process”, “Project dependent” and “Market need”. Due to the fact that PPP projects tend to be large scaled costly projects, adequate transparency in the process is necessary in order to demonstrate that a fair selection and tendering process is conducted. A market need for the project is also important to ensure that the project will be financially secure and that the private sector can make a reasonable profit to cover their project expenditure. Originality / value: The findings from this study have enabled a comparative analysis between the views of researchers in two completely different jurisdictions. With the growing popularity to implement PPP projects, it is believed that the results presented in this paper would be of interest to the industry at large.

United States still no closer to database legislation

Last year European Intellectual Property Review published an article comparing the latest version of the proposed US database legislation, the Collections of Information Antipiracy Bill with the UK's Copyright and Rights in Database Regulations 1997. Subsequently a new US Bill, the Consumer and Investor Access to Information Act has emerged, the Antipiracy Bill has been amended and much debate has occurred, but the US seems no closer to enacting database legislation. This article briefly outlines the background to the US legislative efforts, examines the two Bills and draws some comparisons with the UK Regulations. A study of the US Bills clearly demonstrates the starkly divided opinion on database protection held by the Bills' proponents and the principal lobby groups driving the legislative efforts: the Antipiracy Bill is very protective of database producers' interests, whereas the Access Bill is heavily user-oriented. If the US experience is any indication there will be a long horizon involved in achieving any consensus on international harmonisation of this difficult area.