Are the financial services external complaints resolution schemes subject to judicial review?

In Australia seven schemes (apart from the Superannuation Complaints Tribunal) provide alternative dispute resolution services for complaints brought by consumers against financial services industry members. Recently the Supreme Court of New South Wales held that the decisions of one scheme were amenable to judicial review at the suit of a financial services provider member and the Supreme Court of Victoria has since taken a similar approach. This article examines the juristic basis for such a challenge and contends that judicial review is not available, either at common law or under statutory provisions. This is particularly the case since Financial Industry Complaints Service Ltd v Deakin Financial Services Pty Ltd (2006) 157 FCR 229; 60 ACSR 372 decided that the jurisdiction of a scheme is derived from a contract made with its members. The article goes on to contend that the schemes are required to give procedural fairness and that equitable remedies are available if that duty is breached.

Required hours of practice for learner drivers : a comparison between two Australian jurisdictions

Problem: This study considers whether requiring learner drivers to complete a set number of hours while on a learner licence affects the amount of hours of supervised practice that they undertake. It compares the amount of practice that learners in Queensland and New South Wales report undertaking. At the time the study was conducted, learner drivers in New South Wales were required to complete 50 hours of supervised practice while those from Queensland were not. Method: Participants were approached outside driver licensing centres after they had just completed their practical driving test to obtain their provisional (intermediate) licence. Those agreeing to participate were interviewed over the phone later and asked a range of questions to obtain information including socio-demographic details and amount of supervised practice completed. Results: There was a significant difference in the amount of practice that learners reported undertaking. Participants from New South Wales reported completing a significantly greater amount of practice (M = 73.3 hours, sd = 29.12 hours) on their learner licence than those from Queensland (M = 64.1 hours, sd = 51.05 hours). However, the distribution of hours of practice among the Queensland participants was bimodal in nature. Participants from Queensland reported either completing much less or much more practice than the New South Wales average. Summary: While it appears that the requirement that learner drivers complete a set number of hours may increase the average amount of hours of practice obtained, it may also serve to discourage drivers from obtaining additional practice, over and above the required hours. Impact on Industry: The results of this study suggest that the implications of requiring learner drivers to complete a set number of hours of supervised practice are complex. In some cases, policy makers may inadvertently limit the amount of hours learners obtain to the mandated amount rather than encouraging them to obtain as much practice as possible.

Disrupting the new orthodoxy : emergency intervention and Indigenous social policy

This article develops a critical analysis of the ideological framework that informed the Australian Federal government’s 2007 intervention into Northern Territory Indigenous communities (ostensibly to address the problem of child sexual abuse). Continued by recently elected Prime Minister, Kevin Rudd, the NT ‘emergency response’ has aroused considerable public debate and scholarly inquiry. In addressing what amounts to a broad bi-partisan approach to Indigenous issues we highlight the way in which Indigenous communities are problematised and therefore subject to interventionist regimes that override differentiated Indigenous voices and intensify an internalised sense of rage occasioned by disempowering interventionist projects. We further argue that in rushing through the emergency legislation and suspending parts of the Racial Discrimination Act, the Howard and Rudd governments have in various ways perpetuated racialised and neo-colonial forms of intervention that override the rights of Indigenous people. Such policy approaches require critical understanding on the part of professions involved most directly in community practice, particularly when it comes to mounting effective opposition campaigns. The article offers a contribution to this end.

Quality issues for the National Bowel Cancer Screening Program (NBCSP)

Purpose: This two-part research project was undertaken as part of the planning process by Queensland Health (QH), Cancer Screening Services Unit (CSSU), Queensland Bowel Cancer Screening Program (QBCSP), in partnership with the National Bowel Cancer Screening Program (NBCSP), to prepare for the implementation of the NBCSP in public sector colonoscopy services in QLD in late 2006. There was no prior information available on the quality of colonoscopy services in Queensland (QLD) and no prior studies that assessed the quality of colonoscopy training in Australia. Furthermore, the NBCSP was introduced without extra funding for colonoscopy service improvement or provision for increases in colonoscopic capacity resulting from the introduction of the NBCSP. The main purpose of the research was to record baseline data on colonoscopy referral and practice in QLD and current training in colonoscopy Australia-wide. It was undertaken from a quality improvement perspective. Implementation of the NBCSP requires that all aspects of the screening pathway, in particular colonoscopy services for the assessment of positive Faecal Occult Blood Tests (FOBTs), will be effective, efficient, equitable and evidence-based. This study examined two important aspects of the continuous quality improvement framework for the NBCSP as they relate to colonoscopy services: (1) evidence-based practice, and (2) quality of colonoscopy training. The Principal Investigator was employed as Senior Project Officer (Training) in the QBCSP during the conduct of this research project. Recommendations from this research have been used to inform the development and implementation of quality improvement initiatives for provision of colonoscopy in the NBCSP, its QLD counterpart the QBCSP and colonoscopy services in QLD, in general. Methods – Part 1 Chart audit of evidence-based practice: The research was undertaken in two parts from 2005-2007. The first part of this research comprised a retrospective chart audit of 1484 colonoscopy records (some 13% of all colonoscopies conducted in public sector facilities in the year 2005) in three QLD colonoscopy services. Whilst some 70% of colonoscopies are currently conducted in the private sector, only public sector colonoscopy facilities provided colonoscopies under the NBCSP. The aim of this study was to compare colonoscopy referral and practice with explicit criteria derived from the National Health & Medical Research Council (NHMRC) (1999) Clinical Practice Guidelines for the Prevention, Early Detection and Management of Colorectal Cancer, and describe the nature of variance with the guidelines. Symptomatic presentations were the most common indication for colonoscopy (60.9%). These comprised per rectal bleeding (31.0%), change of bowel habit (22.1%), abdominal pain (19.6%), iron deficiency anaemia (16.2%), inflammatory bowel disease (8.9%) and other symptoms (11.4%). Surveillance and follow-up colonoscopies accounted for approximately one-third of the remaining colonoscopy workload across sites. Gastroenterologists (GEs) performed relatively more colonoscopies per annum (59.9%) compared to general surgeons (GS) (24.1%), colorectal surgeons (CRS) (9.4%) and general physicians (GPs) (6.5%). Guideline compliance varied with the designation of the colonoscopist. Compliance was lower for CRS (62.9%) compared to GPs (76.0%), GEs (75.0%), GSs (70.9%, p<0.05). Compliance with guideline recommendations for colonoscopic surveillance for family history of colorectal cancer (23.9%), polyps (37.0%) and a past history of bowel cancer (42.7%), was by comparison significantly lower than for symptomatic presentations (94.4%), (p<0.001). Variation with guideline recommendations occurred more frequently for polyp surveillance (earlier than guidelines recommend, 47.9%) and follow-up for past history of bowel cancer (later than recommended, 61.7%, p<0.001). Bowel cancer cases detected at colonoscopy comprised 3.6% of all audited colonoscopies. Incomplete colonoscopies occurred in 4.3% of audited colonoscopies and were more common among women (76.6%). For all colonoscopies audited, the rate of incomplete colonoscopies for GEs was 1.6% (CI 0.9-2.6), GPs 2.0% (CI 0.6-7.2), GS 7.0% (CI 4.8-10.1) and CRS 16.4% (CI 11.2-23.5). 18.6% (n=55) of patients with a documented family history of bowel cancer had colonoscopy performed against guidelines recommendations (for general (category 1) population risk, for reasons of patient request or family history of polyps, rather than for high risk status for colorectal cancer). In general, family history was inadequately documented and subsequently applied to colonoscopy referral and practice. Methods - Part 2 Surveys of quality of colonoscopy training: The second part of the research consisted of Australia-wide anonymous, self-completed surveys of colonoscopy trainers and their trainees to ascertain their opinions on the current apprenticeship model of colonoscopy in Australia and to identify any training needs. Overall, 127 surveys were received from colonoscopy trainers (estimated response rate 30.2%). Approximately 50% of trainers agreed and 27% disagreed that current numbers of training places were adequate to maintain a skilled colonoscopy workforce in preparation for the NBCSP. Approximately 70% of trainers also supported UK-style colonoscopy training within dedicated accredited training centres using a variety of training approaches including simulation. A collaborative approach with the private sector was seen as beneficial by 65% of trainers. Non-gastroenterologists (non-GEs) were more likely than GEs to be of the opinion that simulators are beneficial for colonoscopy training (χ2-test = 5.55, P = 0.026). Approximately 60% of trainers considered that the current requirements for recognition of training in colonoscopy could be insufficient for trainees to gain competence and 80% of those indicated that ≥ 200 colonoscopies were needed. GEs (73.4%) were more likely than non-GEs (36.2%) to be of the opinion that the Conjoint Committee standard is insufficient to gain competence in colonoscopy (χ2-test = 16.97, P = 0.0001). The majority of trainers did not support training either nurses (73%) or GPs in colonoscopy (71%). Only 81 (estimated response rate 17.9%) surveys were received from GS trainees (72.1%), GE trainees (26.3%) and GP trainees (1.2%). The majority were males (75.9%), with a median age 32 years and who had trained in New South Wales (41.0%) or Victoria (30%). Overall, two-thirds (60.8%) of trainees indicated that they deemed the Conjoint Committee standard sufficient to gain competency in colonoscopy. Between specialties, 75.4% of GS trainees indicated that the Conjoint Committee standard for recognition of colonoscopy was sufficient to gain competence in colonoscopy compared to only 38.5% of GE trainees. Measures of competency assessed and recorded by trainees in logbooks centred mainly on caecal intubation (94.7-100%), complications (78.9-100%) and withdrawal time (51-76.2%). Trainees described limited access to colonoscopy training lists due to the time inefficiency of the apprenticeship model and perceived monopolisation of these by GEs and their trainees. Improvements to the current training model suggested by trainees included: more use of simulation, training tools, a United Kingdom (UK)-style training course, concentration on quality indicators, increased access to training lists, accreditation of trainers and interdisciplinary colonoscopy training. Implications for the NBCSP/QBCSP: The introduction of the NBCSP/QBCSP necessitates higher quality colonoscopy services if it is to achieve its ultimate goal of decreasing the incidence of morbidity and mortality associated with bowel cancer in Australia. This will be achieved under a new paradigm for colonoscopy training and implementation of evidence-based practice across the screening pathway and specifically targeting areas highlighted in this thesis. Recommendations for improvement of NBCSP/QBCSP effectiveness and efficiency include the following: 1. Implementation of NBCSP and QBCSP health promotion activities that target men, in particular, to increase FOBT screening uptake. 2. Improved colonoscopy training for trainees and refresher courses or retraining for existing proceduralists to improve completion rates (especially for female NBCSP/QBCSP participants), and polyp and adenoma detection and removal, including newer techniques to detect flat and depressed lesions. 3. Introduction of colonoscopy training initiatives for trainees that are aligned with NBCSP/QBCSP colonoscopy quality indicators, including measurement of training outcomes using objective quality indicators such as caecal intubation, withdrawal time, and adenoma detection rate. 4. Introduction of standardised, interdisciplinary colonoscopy training to reduce apparent differences between specialties with regard to compliance with guideline recommendations, completion rates, and quality of polypectomy. 5. Improved quality of colonoscopy training by adoption of a UK-style training program with centres of excellence, incorporating newer, more objective assessment methods, use of a variety of training tools such as simulation and rotations of trainees between metropolitan, rural, and public and private sector training facilities. 6. Incorporation of NHMRC guidelines into colonoscopy information systems to improve documentation, provide guideline recommendations at the point of care, use of gastroenterology nurse coordinators to facilitate compliance with guidelines and provision of guideline-based colonoscopy referral letters for GPs. 7. Provision of information and education about the NBCSP/QBCSP, bowel cancer risk factors, including family history and polyp surveillance guidelines, for participants, GPs and proceduralists. 8. Improved referral of NBCSP/QBCSP participants found to have a high-risk family history of bowel cancer to appropriate genetics services.

Benefit analysis of airborne GPS occultation approach : a case study for the Australian region

This paper aims to present a preliminary benefit analysis for airborne GPS occultation technique for the Australian region. The simulation studies are based on current domestic commercial flights between major Australian airports. With the knowledge of GPS satellite ephemeris data, occultation events for for any particular flight can be determined. Preliminary analysis shows a high resolution occultation observations can be achieved with this approach, for instance, about 15 occultation events for a Perth-to-Sydney flight. The simulation result agrees to the results published by other researchers for a different region. Of course, occultation observation during off-peak hours might be affected due to the limited flight activities. --------- High resolution occultation observations obtainable from airborne GPS occultation system provides an opportunity to improve the current global numerical weather prediction (NWP) models and ultimately improves the accuracy in weather forecasting. More intensive research efforts and experimental demonstrations are required in order to demonstrate the technical feasibility of the airborne GPS technology.

Recent cases on intoxication

Intoxication of a plaintiff raises many issues in a negligence action – duty of care, breach of duty, causation and the defence of contributory negligence. Recently intoxication has been examined by the Full Court of Tasmania in relation to duty and breach and by the New South Wales Court of Appeal in respect of causation and contributory negligence.

Protecting the protectors : legal liabilities from the use of Web 2.0 for Australian disaster response

The traditional model for information dissemination in disaster response is unidirectional from official channels to the public. However recent crises in the US, such as Hurricane Katrina and the Californian Bushfires show that civilians are now turning to Web 2.0 technologies as a means of sharing disaster related information. These technologies present enormous potential benefits to disaster response authorities that cannot be overlooked. In Australia, the Victorian Bushfires Royal Commission has recently recommended that Australian disaster response authorities utilize information technologies to improve the dissemination of disaster related, bushfire information. However, whilst the use of these technologies has many positive attributes, potential legal liabilities for disaster response authorities arise. This paper identifies some potential legal liabilities arising from the use of Web 2.0 technologies in disaster response situations thereby enhancing crisis related information sharing by highlighting legal concerns that need to be addressed.

If it's encrypted it's secure! The viability of US state-based encryption exemptions

US state-based data breach notification laws have unveiled serious corporate and government failures regarding the security of personal information. These laws require organisations to notify persons who may be affected by an unauthorized acquisition of their personal information. Safe harbours to notification exist if personal information is encrypted. Three types of safe harbour have been identified in the literature: exemptions, rebuttable presumptions and factors. The underlying assumption of exemptions is that encrypted personal information is secure and therefore unauthorized access does not pose a risk. However, the viability of this assumption is questionable when examined against data breaches involving encrypted information and the demanding practical requirements of effective encryption management. Recent recommendations by the Australian Law Reform Commission (ALRC) would amend the Privacy Act 1988 (Cth) to implement a data breach scheme that includes a different type of safe harbour, factor based analysis. The authors examine the potential capability of the ALRC’s proposed encryption safe harbour in relation to the US experience at the state legislature level.

Managing the winds of change

Environmental impacts caused during Australia's comparatively recent settlement by Europeans are evident. Governments (both Commonwealth and States) have been largely responsible for requiring landholders – through leasehold development conditions and taxation concessions – to conduct clearing that is now perceived as damage. Most governments are now demanding resource protection. There is a measure of bewilderment (if not resentment) among landholders because of this change. The more populous States, where most overall damage has been done (i.e. Victoria and New South Wales), provide most support for attempts to stop development in other regions where there has been less damage. Queensland, i.e. the north-eastern quarter of the continent, has been relatively slow to develop. It also holds the largest and most diverse natural environments. Tree clearing is an unavoidable element of land development, whether to access and enhance native grasses for livestock or to allow for urban developments (with exotic tree plantings). The consequences in terms of regulations are particularly complex because of the dynamic nature of vegetation. The regulatory terms used in current legislation – such as 'Endangered' and 'Of concern' – depend on legally-defined, static baselines. Regrowth and fire damage are two obvious causes of change. A less obvious aspect is succession, where ecosystems change naturally over long timeframes. In the recent past, the Queensland Government encouraged extensive tree-clearing e.g. through the State Brigalow Development Scheme (mostly 1962 to 1975) which resulted in the removal of some 97% of the wide-ranging mature forests of Acacia harpophylla. At the same time, this government controls National Parks and other reservations (occupying some 4% of the State's 1.7 million km2 area) and also holds major World Heritage Areas (such as the Great Barrier Reef and the Wet Tropics Rainforest) promulgated under Commonwealth legislation. This is a highly prescriptive approach, where the community is directed on the one hand to develop (largely through lease conditions) and on the other to avoid development (largely by unusable reserves). Another approach to development and conservation is still possible in Queensland. For this to occur, however, a more workable and equitable solution than has been employed to date is needed, especially for the remote lands of this State. This must involve resident landholders, who have the capacity (through local knowledge, infrastructure and daily presence) to undertake most costeffectively sustainable land-use management (with suitable attention to ecosystems requiring special conservation effort), that is, provided they have the necessary direction, encouragement and incentive to do so.

The return of manhood suffrage to Queensland, 1863-1872

In 1859, Queensland was separated from New South Wales as an independent colony. At this time the new Governor conspired to ensure the citizens did not inherit the old colonies system of full male suffrage. This was not returned until the Elections Act of 1872. However, the extended franchise was not a result of either democratic values or other ideological intentions. This article will analyse parliamentary debates to show that the revision to full suffrage was a result of administrative expediency driven by an inability to prevent abuse of the limited franchise.

NSW rural land performance : 1990-2008

The annual income return for rural property is based on two major factors being commodity prices and production yields. Commodity prices paid to rural producers can vary depending on the agricultural policies of their respective countries. Free trade countries, such as Australia and New Zealand are subject to the volatility of the world commodity markets to a greater extent than those farmers in protected or subsidised markets. In countries where rural production is protected or subsidised the annual income received by rural producers has been relatively stable. However, the high cost of agricultural protection is now being questioned, particularly in relation to the increasing economic costs of government services such as health, education and housing. When combined with the agricultural production limitations of climate, topography, chemical residues and disease issues, the impact of commodity prices on rural property income is crucial in the ability of rural producers to enter into or expand their holdings in agricultural land. These problems are then reflected in the volatility of the rural land capital returns and the investment performance of this property class. This paper will address the total and capital return performance of a major agricultural area and compare these returns on the basis of both location of land and land use. The comparison will be used to determine if location or actual land use has a greater influence on rural property capital returns. This performance analysis is based on over 35,000 rural sales transactions. These transactions cover all market based rural property transactions in New South Wales, Australia for the period January 1990 to December 2008. Correlation analysis and investment performance analysis has also been carried out to determine the possible relationships between location and land use and subsequent changes in rural land capital values.