The need for legislative reform of the privity doctrine in commercial contracts in Malaysia : a comparative analysis

This thesis commences with the proposition that the first limb of the doctrine of privity causes injustice to third party beneficiaries in Malaysia, particularly in commercial contracts. The doctrine of privity has been the subject of criticism by the judiciary and academic commentators in common law jurisdictions, mainly directed at the first limb of the doctrine, whereby only parties to a contract can sue and be sued. The first limb prevents a third party from enforcing benefits conferred on them by those contracts thereby resulting in third parties suffering loss and injustice to those parties. In several common law countries, such as England, Australia, New Zealand and Singapore, legislative reform of the doctrine has occurred. The legislative reform has abrogated to a significant extent the doctrine of privity in commercial contracts. Malaysia is a common law country, where the doctrine of privity is still applied to contracts. An analysis of Malaysian case law demonstrates that the most affected third party beneficiaries are those seeking to enforce insurance and construction contracts. While a small number of other third parties to commercial contracts, such as agreements to pay for work done, sale and purchase agreements and tenancy agreements are also affected, the detriment is not as significant. As a consequence, this thesis focuses primarily on the impact of the doctrine of privity on commercial contracts in the areas of insurance and construction in Malaysia The thesis aims to recommend appropriate reforms to address the injustices arising from the privity doctrine for third parties seeking to obtain the benefit of insurance and construction contracts, which may also benefit third parties to other types of commercial contracts. While the Malaysian insurance, consumer protection, negotiable instruments and agency laws allow third party beneficiaries to enforce benefits in contracts, the rights are found to be inadequate. As not all third parties seeking to enforce an insurance or construction contract can rely upon the legislation, the injustice arising from the doctrine of privity remains and needs to be addressed. To achieve this aim, a comparative analysis of the rights of third party beneficiaries under insurance and construction contracts in Malaysia, Australia and England is undertaken. The results of the analysis are used to identify appropriate elements for a legislative framework guided by the three essential criteria for effective law reform developed in the thesis. The three criteria are certainty, public interest and justice. The thesis recommends first the enactment of general legislation applicable to all commercial contracts including insurance contracts. Secondly, the thesis recommends specific targeted legislation to address the injustice faced by third party beneficiaries in construction contracts.

Othering the Malay in Malaysia : a planned consequence of politics?

This paper examines the rise in the politicisation of Islam in Malaysia and links it to the othering of the Malaysian Malay. It is my argument that both were “conquering” tools of Malaysia’s “Father of Modernisation”, Mahathir Mohamad, devised to win the support of the Malay Muslim majority in Malaysia. The many awards bestowed on Mahathir obscure the fact that he was instrumental in the systematic erosion of the power and roles of state institutions, especially at the Federal government level. This includes the significant loss of the independence of the Malaysian judiciary. Whilst per capita income in Malaysia may well have increased eight times under his 22-year leadership, this paper asks why is it that the majority of the Malays remain the largest number among the poor and the more disenfranchised of ethnicities in the country? Why have Malay and Muslim women suffered such a rapid decreasing ability to access justice? This paper examines existing research on the social and political changes Malaysia has experienced with Islamisation and under Mahathir’s rule, as well as studies on Malayness, Malay nationalism and Muslim Malay identity formation. The paper elaborates the othering of a majority people, the Malays in Malaysia, and how this othering has brought forth a fast-growing political power in the name of a supremacist Islam, a puritanical Sunni and Malay Islam. Specific events in the rise and rule of Mahathir as Malaysia’s then Prime Minister are reviewed, such as the banning of The Malay Dilemma, and the split in the United Malays National Organisation (UMNO) in 1987. Also examined is the varying emphasis between Muslim and race, and how during Mahathir’s rule, that strong misogynist and patriarchal attitudes took hold in Malay Muslim consciousness, a colonising consciousness that is othering the perceived cultural and genetic “impurities” within the Malay.

National curriculum reform and equipping pre-service teachers to teach about Australia in the Asian Century

Currently a range of national policy settings are reshaping schooling and teacher education in Australia. This paper presents some of the findings from a small qualitative pilot study conducted with a group of final year pre-service teachers studying a secondary social science curriculum method unit in an Australian university. One of the study’s research objectives aimed at identifying how students reflected on their capacity to navigate curriculum change and, more specifically, on teaching about Australia and Asia in the forthcoming implementation of the first national history curriculum. The unit was designed and taught by the researcher on the assumption that beginning social science teachers need to be empowered to deal with the curriculum change they’ll encounter throughout their careers. The pilot study’s methodology was informed by a constructivist approach to grounded theory and its scope was limited to one semester with volunteer students. Of the pre-service teacher reflections on their preparedness to teach, this paper reports on the content, pedagogy and learning they experienced in one segment of the unit with specific reference to the new history curriculum’s ‘Australia in a world history’ approach and the development of Asia literacy. The findings indicate that whilst pre-service teachers valued the opportunity to engage with learning experiences which enhanced their intercultural understanding and extended their pedagogical and content knowledge on campus, the nature of the final practicum in schools was also influential in shaping their preparedness to enter the profession.

The development of an effective and efficient dispute resolution processes for strata scheme disputes in peninsular Malaysia

Dispute resolution in strata schemes in Peninsular Malaysia should focus on more than just "settlement." The quality of the outcome, its sustainability and its relevance in supporting the basic principles of a good neighbourhood and self-governance in a strata scheme are also fundamental. Based on the comprehensive law movement, this thesis develops a theoretical framework for strata scheme disputes within the parameters of therapeutic jurisprudence, preventive law, alternative dispute resolution (ADR) and problem-solving courts. The therapeutic orientation of this model offers approaches that promote positive communication between disputing parties, preserve neighbour relations and optimise people's psychological and emotional well-being.

An approach for adaptive and integrated environmental planning to deal with uncertainty in a Great Barrier Reef Catchment

This paper presents the Mossman Mill District Practices Framework. It was developed in the Wet Tropics region within the Great Barrier Reef in north-eastern Australia to describe the environmental benefits of agricultural management practices for the sugar cane industry. The framework translates complex, unclear and overlapping environmental plans, policy and legal arrangements into a simple framework of management practices that landholders can use to improve their management actions. Practices range from those that are old or outdated through to aspirational practices that have the potential to achieve desired resource condition targets. The framework has been applied by stakeholders at multiple scales to better coordinate and integrate a range of policy arrangements to improve natural resource management. It has been used to structure monitoring and evaluation in order to underpin a more adaptive approach to planning at mill district and property scale. Potentially, the framework and approach can be applied across fields of planning where adaptive management is needed. It has the potential to overcome many of the criticisms of property-scale and regional Natural Resource Management.

An application of an extended theory of planned behaviour to understand drivers' compliance with the school zones speed limit in Australia and Malaysia

This research investigated individual and situational factors that influence driver compliance with the school zones speed limit in Australia and Malaysia. Despite all the countermeasures implemented in these two countries, driver compliance with the speed limit in school zones is still poor. The findings of the research provided support for the application of the Theory of Planned Behaviour to understand and therefore influence drivers' intention to comply with the school zones speed limit in both Australia and Malaysia. The research also revealed that mindfulness, a construct rarely used in road safety before, directly influenced Australian drivers' intention to comply, while habit influenced intention to comply in Malaysia. The research raised important theoretical and cross-cultural issues for future research and highlighted the need to increase the visibility of school zones with the use of more noticeable traffic control devices.

Consumers persepctive on pharmacists integration into private primary healthcare clinics in Malaysia

Background: Pharmacists are considered medication experts but are underutilised mainly at the periphery of the primary healthcare team. General medical practitioners (GPs) in Malaysian private healthcare clinics are granted rights to prescribe and dispense medications, thus furhter limiting pharmacists involvement in ensuring safe use of medicines. The integration of pharmacist into private primary healthcare clinics has the potential to reduce medication-relation problems. Objective: To explore the views of consumers on the integration of pharmacists within private primary healthcare clinics in Malaysia. Method: A purposive sample of healthcare consumers in Selangor and Kuala Lumpur, Malaysia were invited to participate in focus groups and semi-structured interviews. Sessions were audio recorded and transcribed verbatim and thematically analysed using NVivo 10. Results: A total of 24 healthcare consumers particpated in two focus groups and six semi-structured interviews. Four major themes were identified: (1) Pharmacists role viewed mainly as supplying medications, (2) Readiness to accept pharmacists in private healthcare clinics, (3) Willingness to pay for pharmacy services, and (4) Concerns about GPs resistance to pharmacist integration. Consumers felt that a pharmacist integrated into private prumary healthcare clinics could offer potential benefits such as counter-checking prescriptions to ensure correct medication is supplied and counselling consumers on their medications and the potential side effects. The potential to increase in costs to consumers and GPs reluctance were perceived as barriers to integration. Conclusion: This study provides insights into consumers perspectives on the roles of pharmacists within private primary healthcare clinics in Malaysia. Consumers generally supported pharmacist integration into private primary healthcare clinics. However, for pharmacists to expand their capacity in providing integrated and collaborative primary care services to consumers, barriers to pharmacist integration need to be addressed.

Economic development and construction productivity in Malaysia

The productivity of the construction industry has a significant effect on national economic growth. Gains from higher construction productivity flow through the economy, as all industries rely on construction to some extent as part of their business investment. Contractions and expansions of economic activity are common phenomena in an economy. Three construction cycles occurred between the years 1970 and 2011 in Malaysia. The relationships between construction productivity and economic development are examined by the partial correlation method to establish the underlying factors driving the change in construction productivity. Construction productivity is statistically significantly correlated with gross domestic product (GDP) per capita in a positive direction for the 1985–98 and 1998–2009 cycles, but not the 1970–85 cycle. Fluctuations in construction activities and the influx of foreign workers underlie the changes of construction productivity in the 1985–98 cycle. There was less fluctuation in construction activities in the 1998–2009 cycle, with changes being mainly due to the fiscal stimulation policies of the government in attempting to stabilize the economy. The intensive construction of mega-projects resulted in resource constraints and cost pressures during the 1980s and 1990s. A better management of the ‘boom-bust’ nature of the construction business cycle is required to maintain the capability and capacity of the industry.

Institutional investors, political connections and analyst following in Malaysia

We examine the association between institutional ownership, political connections, and analyst following in Malaysia from 1999 to 2009. Based on 940 firm-year observations, we document a positive relation between institutional ownership, particularly by Employees Provident Fund (EPF), and analyst following, thus supporting the governance role that institutional investors play in promoting corporate transparency. However, there is no evidence that political connections matter to analyst following. The monitoring role of institutional investors, including EPF, does not appear to be any different between politically connected and non-connected firms.

Work and family : the perception of balance among female teachers in northern Malaysia

Women’s participation in paid employment has become a common scenario even in non-western developing countries. For example in Malaysia, the trend is growing although the traditional gender role remains strong in Malaysian society. Even though working, women are still expected to assume major responsibilities at home. Thus, as opposed to men, women in this society face the challenge to satisfactorily balance work and family. This study was carried out to explore how Malaysian women perceive the meaning of a balanced work-family life. Sampling women teachers, the interview findings revealed that work-family balance was mainly perceived in terms of an individual’s ‘ability to fulfill role obligation’ appropriately in both the work and family domains. A few participants also viewed balance in the context of role satisfaction and role interference. Overall, the results support the assumption in the literature that perceptions of work-family experience are not universal, rather, the construct of work-family balance is culture-specific.

Multimedia super corridor, Malaysia: Knowledge-based urban development lessons from an emerging economy

Purpose Knowledge-based urban development (KBUD) has been an effective strategy and an opportunity for emerging economies for catching up with the developed economies. The paper aims to investigate and provide insights on KBUD in the context of emerging economies. Design/methodology/approach The paper scrutinizes the Multimedia Super Corridor of Malaysia (MSC) by focusing on the planning, development and orchestration of the knowledge corridor. Findings The paper reveals a number of lessons and insights drawn from the development of MSC as the largest manifestation of KBUD initiative in Malaysia. Originality/value The paper provides lessons and recommendations on the planning, development and management of KBUD for emerging economies that are seeking a prosperous development.

How should regulators deal with entrenched company executives?

The regulatory framework for corporate governance, both in Australia and internationally, shifts between rules based regimes and principles based approach. The rules based regimes are typified by legislation that imposes mandated compliance based rules, such as the Sarbanes Oxley Act. Other regimes, such as Australia’s CLERP 9 and the ASX Corporate Governance Council’s principles, have opted for a disclosure approach. This paper examines these approaches in the context of the non-binding vote rule, which arguably combines aspects of both. The study’s methodology empirically considers evidence relating to actual voting patterns as well as case study examples of the non-binding vote’s effectiveness. Significantly, our analyses show that from its inception, the non-binding vote was effective in motivating management to change the remuneration package to one they perceived as more acceptable to shareholders and that the non-binding vote is an effective regime to manage CEO remuneration (and by extension) executive remuneration.

Health care consumers’ perspectives on pharmacist integration into private general practitioner clinics in Malaysia: A qualitative study

Background Pharmacists are considered medication experts but are underutilized and exist mainly at the periphery of the Malaysian primary health care team. Private general practitioners (GPs) in Malaysia are granted rights under the Poison Act 1952 to prescribe and dispense medications at their primary care clinics. As most consumers obtain their medications from their GPs, community pharmacists’ involvement in ensuring safe use of medicines is limited. The integration of a pharmacist into private GP clinics has the potential to contribute to quality use of medicines. This study aims to explore health care consumers’ views on the integration of pharmacists within private GP clinics in Malaysia. Methods A purposive sample of health care consumers in Selangor and Kuala Lumpur, Malaysia, were invited to participate in focus groups and semi-structured interviews. Sessions were audio recorded and transcribed verbatim and thematically analyzed using NVivo 10. Results A total of 24 health care consumers participated in two focus groups and six semi-structured interviews. Four major themes were identified: 1) pharmacists’ role viewed mainly as supplying medications, 2) readiness to accept pharmacists in private GP clinics, 3) willingness to pay for pharmacy services, and 4) concerns about GPs’ resistance to pharmacist integration. Consumers felt that a pharmacist integrated into a private GP clinic could offer potential benefits such as to provide trustworthy information on the use and potential side effects of medications and screening for medication misadventure. The potential increase in costs passed on to consumers and GPs’ reluctance were perceived as barriers to integration. Conclusion This study provides insights into consumers’ perspectives on the roles of pharmacists within private GP clinics in Malaysia. Consumers generally supported pharmacist integration into private primary health care clinics. However, for pharmacists to expand their capacity in providing integrated and collaborative primary care services to consumers, barriers to pharmacist integration need to be addressed.

Developing green procurement framework for construction projects in Malaysia

With the current emerging development pattern in Malaysia, Malaysian government has enthusiastically promoted green procurement approach that will help the construction project being green. Previous studies highlighted that the concept of green procurement is still very new to the Malaysian construction industry, and this increases the needs for further research in this area. This paper addresses the needs of guidelines for stakeholders to procure environmentally-friendly construction. Currently, there is a limited practical guideline for stakeholders to procure green projects. This paper discusses the progress to date of a research project aimed at developing a green procurement framework for construction projects in the Malaysian construction industry. This framework will guide the stakeholders to plan the green procurement implementation to procure a construction projects. Through literature and expert opinion, this paper explores the list of green practices within procurement practices which becomes the basis to develop a survey instrument that will be used in the later part of this study. The paper will shed useful information for construction researchers and practitioners in exploring the green procurement concept for construction industry in Malaysia.

An anticipative reactive control strategy to deal with unforeseen obstacles during a multi-sensor-based navigation task

We address the problem of the rangefinder-based avoidance of unforeseen static obstacles during a visual navigation task. We extend previous strategies which are efficient in most cases but remain still hampered by some drawbacks (e.g., risks of collisions or of local minima in some particular cases, etc.). The key idea is to complete the control strategy by adding a controller providing the robot some anticipative skills to guarantee non collision and by defining more general transition conditions to deal with local minima. Simulation results show the proposed strategy efficiency.