An analysis of dispute review boards and settlement mediation as used in the Australian construction industry

If there is a silver lining to the adversarial, dispute-prone nature of the building and construction industry, it can be found in the concomitant rise of innovative dispute resolution mechanisms. Time, cost and relationship concerns have meant that the formal adversarial system holds little appeal for disputing parties. As these alternative forms of dispute avoidance/resolution have matured in Australia over the last 20 years, attention has turned to the key characteristics of each process and their suitability to the building and construction industry. This article considers the role of dispute review boards (DRBs) and mediation as two alternative methods for avoiding/resolving disputes in the construction industry. Criteria are established for evaluating the efficacy of these procedures and their sensitivity to the needs of construction industry disputants. The ultimate conclusion reached is that DRBs represent a powerful, yet underutilised dispute resolution tool in Australia, and possess many industry-specific advantages that more traditional forms of alternative dispute resolution (particularly mediation) do not provide.

Costs - solicitor's retainer on 'no win, no fee' basis - meaning of 'win' - solicitor not entitled to recover excess of costs over amount paid on settlement - no consideration for variation of oral retainer.

In Baker Johnson Lawyers v Jorgensen [2002] QDC 205 McGill DCJ considered the meaning of a 'no win, no fee' retainer and concluded that, in the absence of qualification by agreement, solicitors retained on that basis were not entitled to recover costs exceeding the amount of any judgment or settlement.

Studying refugee settlement through longitudinal research : methodological and ethical insights from the Good Starts study

Research involving resettled refugees raises methodological and ethical complexities. These complexities typically emerge within cross-sectional research that focuses on refugee experiences at a specific point in time. Given the long term and dynamic nature of refugee settlement, longitudinal research is valuable, yet it raises distinct complexities within the research process. This article focuses on the methodological and ethical insights that emerged in a longitudinal study of settlement and wellbeing with a cohort of young people from refugee backgrounds in Australia. It considers: engagement and retention of a cohort over time; the need to adapt research tools to changing settlement contexts and life stages; participants’ experiences of long-term involvement in the study; and the challenge of timely translation of findings into evidence for policy and practice. The article contributes to a growing understanding of the practical, ethical and epistemological challenges and opportunities presented by longitudinal research, in this case, with resettled refugee background youth.

“My hands are plunged in oranges”…: an experiential account of a working process

This presentation incorporated the live performance throughout, by the author, of movement from “The All Weather Project” by Liz Roche. Movement sections are indicated by italics. “I am going to start by dancing for you… Movement: Live performance of solo approximately 10 minutes in duration This is the introduction... Through my PhD research, I am examining the choreographic process from the perspective of the independent contemporary dancer, through embodying this role as a researcher/participant. My methodological frameworks, which utilise video documentation and journal writing, could be characterised as ethnographic, multi-modal embodied theorising, leading to “multi-dimensional theorising” (I adopt this term from Susan Melrose). In this way, I am unwinding the embodied practice of dancing, through the co-existent layers of experience, towards forming a theoretical understanding of the issues that arise for the dancer. The issues that I have identified as relevant to my research are those relating to the dancer’s ‘moving identity’ or way of moving, as a mutable and adaptable form that must alter and re-adjust to each different choreographic engram or movement vocabulary, that she/he encounters. I am examining this interplay between stability and change. I also reflect on the impact of destabilisation and flux on the dancer’s identity in a wider sense, as she/he relates outwardly to signifying factors within the social strata. Today I am going to bring you through a reflection on the working process of a dance piece as experienced from the inside. By doing so, I hope to capture and elucidate the multi-dimensional layers which existed for me within this process. Through displaying these fragments together, I endeavour to invoke the ‘totality’ of the experience...

A generalised deficit can account for problems in facial emotion recognition in schizophrenia

Neuroimaging research has shown localised brain activation to different facial expressions. This, along with the finding that schizophrenia patients perform poorly in their recognition of negative emotions, has raised the suggestion that patients display an emotion specific impairment. We propose that this asymmetry in performance reflects task difficulty gradations, rather than aberrant processing in neural pathways subserving recognition of specific emotions. A neural network model is presented, which classifies facial expressions on the basis of measurements derived from human faces. After training, the network showed an accuracy pattern closely resembling that of healthy subjects. Lesioning of the network led to an overall decrease in the network’s discriminant capacity, with the greatest accuracy decrease to fear, disgust and anger stimuli. This implies that the differential pattern of impairment in schizophrenia patients can be explained without having to postulate impairment of specific processing modules for negative emotion recognition.

Towards equalisation of the impact of the penal fine : why the wealth of the offender was taken into account

Important changes in the legal regulation of the fine culminated in the implementation of the day‐fine system in many European countries during the twentieth century. These changes resulted from various late nineteenth century rationalities that considered the fine a justifiable punishment. Therefore, they supported extending its application by making it affordable for people on low incomes, which meant imprisonment for fine default could mostly be avoided without undermining the end of punishment. In this paper I investigate the historical development of the penal fine as well as the changing forms of this penalty in Western European criminal systems from the end of the eighteenth century until the late nineteenth century.

The space of make: A topological account of the studio

Approaches to art-practice-as-research tend to draw a distinction between the processes of creative practice and scholarly reflection. According to this template, the two sites of activity – studio/desk, work/writing, body/mind – form the ‘correlative’ entity known as research. Creative research is said to be produced by the navigation of world and thought: spaces that exist in a continual state of tension with one another. Either we have the studio tethered to brute reality while the desk floats free as a site for the fluid cross-pollination of texts and concepts. Or alternatively, the studio is characterized by the amorphous, intuitive play of forms and ideas, while the desk represents its cartography, mapping and fixing its various fluidities. In either case, the research status of art practice is figured as a fundamentally riven space. However, the nascent philosophy of Speculative Realism proposes a different ontology – one in which the space of human activity comprises its own reality, independent of human perception. The challenge it poses to traditional metaphysics is to rethink the world as if it were a real space. When applied to practice-led research, this reconceptualization challenges the creative researcher to consider creative research as a contiguous space – a topology where thinking and making are not dichotomous points but inflections in an amorphous and dynamic field. Instead of being subject to the vertical tension between earth and air, a topology of practice emphasizes its encapsulated, undulating reality – an agentive ‘object’ formed according to properties of connectedness, movement and differentiation. Taking the central ideas of Quentin Meillassoux and Graham Harman as a point of departure, this paper will provide a speculative account of the interplay of spatialities that characterise the author’s studio practice. In so doing, the paper will model the innovative methodological potential produced by the analysis of topological dimensions of the studio and the way they can be said to move beyond the ‘geo-critical’ divide.

Regional versus urban differences in teenage alcohol use: Does parental disapproval account for these differences?

- Objective To investigate if parental disapproval of alcohol use accounts for differences in adolescent alcohol use across regional and urban communities. - Design Secondary data analysis of grade-level stratified data from a random sample of schools. - Setting High schools in Victoria, Australia. - Participants A random sample of 10273 adolescents from Grade 7 (mean age=12.51 years), 9 (14.46 years) and 11 (16.42 years). - Main outcome measures The key independent variables were parental disapproval of adolescent alcohol use and regionality (regional/ urban), and the dependent variable was past 30 days alcohol use. - Results After adjusting for potential confounders, adolescents in regional areas were more likely to use alcohol in the past 30 days (OR=1.83, 1.44 and 1.37 for Grades 7, 9 and 11, respectively, P<0.05), and their parents have a lower level of disapproval of their alcohol use (b=-0.12, -0.15 and -0.19 for Grades 7, 9 and 11, respectively, P<0.001). Bootstrapping analyses suggested that 8.37%, 23.30% and 39.22% of the effect of regionality on adolescent alcohol use was mediated by parental disapproval of alcohol use for Grades 7, 9 and 11 participants respectively (P<0.05). - Conclusions Adolescents in urban areas had a lower risk of alcohol use compared with their regional counterparts, and differences in parental disapproval of alcohol use contributed to this difference.

Queer Youth Research/ers: A reflexive account of risk and intimacy in an ethical (mine)field

In contemporary Western societies, the years between childhood and young adulthood are commonly understood to be (trans)formative in the reflexive project of sexual self-making (Russell et al. 2012). As sexual subjects in the making, youthful bodies, desires and sexual activities are often perceived as both volatile and vulnerable, thus subjected to instruction and discipline, protection and surveillance. Accordingly, young people’s sexual proximities are closely monitored by social institutions and ‘(hetero)normalising regimes’ (Warner 1999) for any signs that may compromise the end goal of development—a ‘normal’ reproductive heterosexual monogamous adult.

Plain packaging for the Pacific Rim: The Trans-Pacific Partnership and tobacco control

Big Tobacco has been engaged in a dark, shadowy plot and conspiracy to hijack the Trans-Pacific Partnership Agreement (TPP) and undermine tobacco control measures – such as graphic health warnings and the plain packaging of tobacco products... In the context of this heavy lobbying by Big Tobacco and its proxies, this chapter provides an analysis of the debate over trade, tobacco, and the TPP. This discussion is necessarily focused on the negotiations of the free trade agreement – the shadowy conflicts before the finalisation of the text. This chapter contends that the trade negotiations threaten hard-won gains in public health – including international developments such as the WHO Framework Convention on Tobacco Control, and domestic measures, such as graphic health warnings and the plain packaging of tobacco products. It maintains that there is a need for regional trade agreements to respect the primacy of the WHO Framework Convention on Tobacco Control. There is a need both to provide for an open and transparent process regarding such trade negotiations, as well as a due and proper respect for public health in terms of substantive obligations. Part I focuses on the debate over the intellectual property chapter of the TPP, within the broader context of domestic litigation against Australia’s plain tobacco packaging regime and associated WTO disputes. Part II examines the investment chapter of the TPP, taking account of ongoing investment disputes concerning tobacco control and the declared approaches of Australia and New Zealand to investor-state dispute settlement. Part III looks at the discussion as to whether there should be specific text on tobacco control in the TPP, and, if so, what should be its nature and content. This chapter concludes that the plain packaging of tobacco products – and other best practices in tobacco control – should be adopted by members of the Pacific Rim.

Lock the gate: Fracking, investor-state dispute settlement, and the Trans-Pacific Partnership

There has been much debate about the relationship between international trade, the environment, biodiversity protection, and climate change.The Obama Administration has pushed such issues into sharp relief, with its advocacy for sweeping international trade agreements, such as the Trans-Pacific Partnership and the Trans-Atlantic Trade and Investment Partnership. There has been much public concern about the impact of the mega-trade deals upon the protection of the environment. In particular, there has been a debate about whether the Trans-Pacific Partnership will promote dirty fracking. Will the Trans-Pacific Partnership transform the Pacific Rim into a Gasland?There has been a particular focus upon investor-state dispute settlement being used by unconventional mining companies. Investor-state dispute settlement is a mechanism which enables foreign investors to seek compensation from national governments at international arbitration tribunals. In her prescient 2009 book, The Expropriation of Environmental Governance, Kyla Tienhaara foresaw the rise of investor-state dispute resolution of environmental matters. She observed:'Over the last decade there has been an explosive increase of cases investment arbitration. This is significant in terms of not only the number of disputes that have arisen and the number of states that have been involved, but also the novel types of dispute that have emerged. Rather than solely involving straightforward incidences of nationalization or breach of contract, modern disputes often revolve around public policy measures and implicate sensitive issues such as access to drinking water, development on sacred indigenous sites and the protection of biodiversity.'In her study, Kyla Tienhaara observed that investment agreements, foreign investment contracts and investment arbitration had significant implications for the protection for the protection of the environment. She concluded that arbitrators have made it clear that they can, and will, award compensation to investors that claim to have been harmed by environmental regulation. She also found that some of the cases suggest that the mere threat of arbitration is sufficient to chill environmental policy development. Tienhaara was equally concerned by the possibility that a government may use the threat of arbitration as an excuse or cover for its failure to improve environmental regulation. In her view, it is evident that arbitrators have expropriated certain fundamental aspects of environmental governance from states. Tienhaara held: As a result, environmental regulation has become riskier, more expensive, and less democratic, especially in developing countries. This article provides a comparative analysis of the battles over fracking, investment, trade, and the environment in a number of key jurisdictions including the United States, Canada, Australia, and New Zealand. Part 1 focuses upon the United States. Part 2 examines the dispute between the Lone Pine Resources Inc. and the Government of Canada over a fracking moratorium in Quebec. Part 3 charts the rise of the Lock the Gate Alliance in Australia, and its demands for a moratorium in respect of coal seam gas and unconventional mining. Part 4 focuses upon parallel developments in New Zealand. This article concludes that Pacific Rim countries should withdraw from investor-state dispute settlement procedures, because of the threat posed to environmental regulation in respect of air, land, and water.

Through their eyes: Seeing experiences of Settlement in photographs taken by refugee background youth in Melbourne, Australia

Although “refugees” are frequently represented in visual media, it is predominantly as the central subject matter and rarely are they positioned as the photographers of their own journeys. In this article we present photographic images that have been taken by refugee background youth portraying their experiences of the first years of settlement in Australia. We consider how, in our longitudinal research conducted with 120 refugee background youth, visual materials can provide equally important yet different insights in comparison to written or spoken narratives on the experiences of refugee settlement. Through an examination of over 1,000 photos taken by these youth, we explore the ways in which they portrayed their early experiences of external suburban settlement environments and their depictions of interior spaces and home-making practices. We discuss how these visual insights capture an alternative way of seeing the experiences of becoming at home as the youth become emplaced post-resettlement in Australia. We argue that the photographs taken by these refugee background youth illustrate how visual methods and materials can provide equally important but often overlooked insights into early settlement experiences. Importantly, the photographic images offer a way of portraying the people, places and sentiments that are central to the everyday lives of refugee background youths in ways that oral and written narratives can not.