Post-colonial law : legal establishments from past empires are illegitimate

The extant literature covering the plights of indigenous people resident to the African continent consistently targets colonial law as an obstacle to the recognition of indigenous rights. Whereas colonial law is argued to be archaic and in need of review, which it is, this article argues the new perspective that colonial law is illegitimate for ordering the population it presides over – specifically in Africa. It is seen, in five case studies, that post-colonial legal structures have not considered the legitimacy of colonial law and have rather modified a variety of statutes as country contexts dictated. However, the modified statutes are based on an alien theoretical legality, something laden with connotations that hark to older and backward times. It is ultimately argued that the legal structures which underpin ex-colonies in Africa need considerable revision so as to base statutes on African theoretical legality, rather than imperialistic European ones, so as to maximise the law’s legitimacy.

Some critical legal issues affecting insurance transaction globally

Increasingly, major insurers and reinsurers are operating on a global basis. For example, General Re Corporation and Cologne Re operate in almost 150 countries : see "General Re Corporation 1999 Annual Report". This is also true for the world's major brokers, and the emergence of large broking conglomerates such as Aon and Marsh are good examples of global service providers. Against the background of this increasingly global insurance market with global participants, there are a range of common legal issues in this article but a selection of certain critical matters are canvassed in the secitons below. First there are a range of regulatory issues that must be addressed. Secondly globalisation of the industry does create added incentive for a common legal regime to cover the formation of insurance transactions and the resolution of disputes about claims, coverage and termination. In this contect codifcation of insurance laws is a critical issue. Thirdly, major advances in genetic research and biotechnology over recent years have resulted in a dramatic increase in the availability of genetic testing. These developments have given rise to concerns worldwide about the potential for misuse of genetic information by third parties such as insurers and employers. Fourthly, the essence of an insurance transaction is the transference of risk from one person to anther. It is generally accepted that this transference should occur in informed circumstances and without undue advantage being bestowed upon either party. Finally this article will consider some legal matter in relation to transacting insurance on the internet

Beyond charity : outlines of a jurisprudence for civil society

There is not a single, coherent, jurisprudence for civil society organisations. Pressure for a clearly enuciated body of law applying to the whole of this sector of society continues to increase. The rise of third sector scholarship, the retreat of the welfare state, the rediscovery of the concept of civil society and pressures to strengthen social capital have all contributed to an ongoing stream of inquiry into the laws that regulate and favour civil society organisations. There have been almost thirty inquiries over the last sixty years into the doctrine of charitable purpose in common law countries. Those inquiries have established that problems with the law applying to civil society organisations are rooted in the common law adopting a ‘technical’ definition of charitable purpose and the failure of this body of law to develop in response to societal changes. Even though it is now well recognised that problems with law reform stem from problems inherent in the doctrine of charitable purpose, statutory reforms have merely ‘bolted on’ additions to the flawed ‘technical’ definition. In this way the scope of operation of the law has been incrementally expanded to include a larger number of civil society organisations. This piecemeal approach continues the exclusion of most civil society organisations from the law of charities discourse, and fails to address the underlying jurisprudential problems. Comprehensive reform requires revisiting the foundational problems embedded in the doctrine of charitable purpose, being informed by recent scholarship, and a paradigm shift that extends the doctrine to include all civil society organisations. Scholarly inquiry into civil society organisations, particularly from within the discipline of neoclassical economics, has elucidated insights that can inform legal theory development. This theory development requires decoupling the two distinct functions performed by the doctrine of charitable purpose which are: setting the scope of regulation, and determining entitlement to favours, such as tax exemption. If the two different functions of the doctrine are considered separately in the light of theoretical insights from other disciplines, the architecture for a jurisprudence emerges that facilitates regulation, but does not necessarily favour all civil society organisations. Informed by that broader discourse it is argued that when determining the scope of regulation, civil society organisations are identified by reference to charitable purposes that are not technically defined. These charitable purposes are in essence purposes which are: Altruistic, for public Benefit, pursued without Coercion. These charitable puposes differentiate civil society organisations from organisations in the three other sectors namely; Business, which is manifest in lack of altruism; Government, which is characterised by coercion; and Family, which is characterised by benefits being private not public. When determining entitlement to favour, it is theorised that it is the extent or nature of the public benefit evident in the pursuit of a charitable purpose that justifies entitlement to favour. Entitlement to favour based on the extent of public benefit is the theoretically simpler – the greater the public benefit the greater the justification for favour. To be entitled to favour based on the nature of a purpose being charitable the purpose must fall within one of three categories developed from the first three heads of Pemsel’s case (the landmark categorisation case on taxation favour). The three categories proposed are: Dealing with Disadvantage, Encouraging Edification; and Facilitating Freedom. In this alternative paradigm a recast doctrine of charitable purpose underpins a jurisprudence for civil society in a way similar to the way contract underpins the jurisprudence for the business sector, the way that freedom from arbitrary coercion underpins the jurisprudence of the government sector and the way that equity within families underpins succession and family law jurisprudence for the family sector. This alternative architecture for the common law, developed from the doctrine of charitable purpose but inclusive of all civil society purposes, is argued to cover the field of the law applying to civil society organisations and warrants its own third space as a body of law between public law and private law in jurisprudence.

Professional Responsibility and Legal Ethics in Queensland

With the commencement of the Legal Profession Act 2007 (Qld) and the establishment of the Legal Services Commission, the legal profession and legal services market in Queensland has experienced significant changes to its regulatory environment. Professional Responsibility and Legal Ethics in Queensland provides a detailed explanation and analysis of these changes. The book will assist lawyers to plan for successful practice within this new environment by examining such topics as: • The scope and application of key provisions within the Legal Profession Act; • The role, functions and policies of the Legal Services Commission; • The ethical and regulatory implications of operating as an Incorporated Legal Practice or as a Multi-Disciplinary Partnership; • Developments affecting trust accounts and client money dealings more generally; • Recent case law, Tribunal decisions and Legal Services Commission guidelines in relation to the new conduct standards of Unsatisfactory Professional Conduct and Professional Misconduct; and • The impact of the new legislation and regulatory environment on a range of traditional ethical duty categories such as the duty to communicate, costs and billing practices, as well as the paramount duties to the court and to the administration of justice. An invaluable reference for legal professionals, this book is also an important resource for law students grappling with questions raised by legal ethics and their application to the workplace.

Fraudulent insurance claims : recent legal developments

Insurance fraud continues to be a major problem worldwide. This article will canvass recent legal developments in relation to selected issues and matters of particular concern to the insurance industry. This article is confined to fraudulent claims. Fraud may arise at various points in the insurance relationship, including initial fraud on placement and fraudulent breach of contract by the assured. Fraud at the outset by the assured is treated differently from innocent or negligent conduct. "Fraud" in the context of this paper embraces all claims where an insured intednds to deceive an insurer by getting out i money to which the insured knew he had no right. This article will examine fraudulent insurance claims.

Men's intimate partner abuse and control : reconciling paradoxical masculinities and social contradictions

Intimate partner abuse and control is one of the most common forms of violence against women, and is considered an international problem of social, political, legal and human rights significance. Yet few studies have attempted to understand this problem from the perspective of male perpetrators. This gap is addressed by conducting in-depth interviews with 16 able-bodied men of white European ancestry born and educated in New Zealand or Australia, who have been physically violent and/or emotionally, intellectually, sexually or financially controlling of a live-in female partner. This thesis extends and deepens the dominant ways of thinking about men’s intimate partner abuse by utilising a new theoretical framework compatible with contemporary feminist scholarship. A synthesis of Connell’s theory of masculinities and Bourdieu’s field theory is utilised for the purpose of exploring more nuanced, complex understandings of manliness and men’s relationships with men, women and social structures. Through such an analysis, this thesis finds that men’s perpetration of power and control over women is driven by a need to avoid the stigma of appearing weak. As a consequence, their desire and ability to show love, care and empathy is suppressed in favour of a presumed honourable manliness, and their female partners are used as weapons in the pursuit of symbolic capital in the form of recognition, prestige and acceptance from real and/or imagined men. This research also uncovers the complex interplay between masculine practices and particular social contexts. For example, the norms of practice encountered from those in authority, such as teachers, sports coaches, police, court judges and workplace management, influences the decision making of the men in this study, to use, or not to use, physical violence, psychological abuse and structural control. The principal conclusion is that there is a repertoire of paradoxical masculinities and contradictory social messages available to the men in this study. But gender policing by other men, complicit women and those in authority provides little room for legitimate complexity in masculine practices. Perpetrators in this study reconcile these conflicts of interest by generally avoiding subordinated masculinity and possible ostracism, and instead practicing more heroic hegemonic masculinities by abusing and controlling women and particular other men. This thesis concludes that for intimate partner abuse and control to cease, changes in power structures have to occur at all levels of society.

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.

Distribution profiles of key weather variables in Australian capital cities : implications for energy efficient building design

Local climate is a critical element in the design of energy efficient buildings. In this paper, ten years of historical weather data in Australia's eight capital cities were profiled and analysed to characterize the variations of climatic variables in Australia. The method of descriptive statistics was employed. Either the pattern of cumulative distribution and/or the profile of percentage distribution are presented. It was found that although weather variables vary with different locations, there is often a good, nearly linear relation between a weather variable and its cumulative percentage for the majority of middle part of the cumulative curves. By comparing the slopes of these distribution profiles, it may be possible to determine the relative range of changes of the particular weather variables for a given city. The implications of these distribution profiles of key weather variables on energy efficient building design are also discussed.

Legal aspects of Web 2.0 activities : management of legal risk associated with use of YouTube, MySpace and Second Life

This Report, prepared for Smart Service Queensland (“SSQ”), addresses legal issues, areas of risk and other factors associated with activities conducted on three popular online platforms—YouTube, MySpace and Second Life (which are referred to throughout this Report as the “Platforms”). The Platforms exemplify online participatory spaces and behaviours, including blogging and networking, multimedia sharing, and immersive virtual environments.

Unincorporated associations as entities : a matter of balance between regulation and facilitation?

Small non-profit organisations play a vital role in the creation of social capital and resilience of civil society in Australia. A number of government inquiries have recently been commissioned to propose reform to non-profit enterprise and it is timely to examine the suitability of legal structures available for small non-profit organisations. This article reviews the characteristics of small Australian non-profit organisations and the legal treatment of similar associations in New Zealand, the United Kingdom, Europe, Canada and United States to inform possible reform strategies. Reforms are then proposed for small Australian unincorporated organisations which allow them access to the benefits of separate legal entity status, but with regulation proportionate to the risks posed to the broader community.

ACE's role in developing Australia's human capital : a structural analysis

This project explored ways in which Adult and Community Education (ACE) could make a greater contribution to the human capital development outcome under the National Reform Agenda (NRA), and increase the number of skilled workers in Australia. Data on current vocational and non-vocational ACE programs was analysed. Strategies to improve ACE were collated for consideration by government authorities and ACE providers. There is much diversity in the perceived role and activities of ACE. Researchers have found it challenging to create a profile that depicts the whole sector, particularly in the absence of much reliable, valid and comparable data on ACE activities and outcomes. However, there is evidence indicative of ACE’s assistance in re-engaging with learning and training, and initiating pathways to further training or employment. The potential for ACE to make a bigger contribution to skilling Australia is recognised by governments across the nation (Senate Employment, Workplace Relations, Small Business and Education Committee, 1997). Yet policy changes to facilitate an increased role of ACE in the skilling process, and resourcing for ACE programs continue to receive less attention. This project explored three research questions: • What does the current profile of the ACE sector look like? • How is ACE contributing to reducing the skills deficit? • How can ACE enhance its contributions to reduce the skills deficit and achieve the human capital development outcome of the National Reform Agenda? The responsiveness

In search of Chinese jurisprudence : does Chinese legal tradition have a place in China's future?

Questions the extent to which Westerrn commercial laws adopted by China, particularly in its Company Laws of 1993 and 1995, are comptaible with China's different cultural and legal traditions. Suggests that Western concepts of the rule of law and of corporate governance are alient to China. Outlines the development of the Western legal tradition. based on Judaeo-Christian beliefs and legal rationalism. Compares this with the deveopment of the Chinese legal tradtion, based on Confucianism and legalism. Proposes ways in which the two traditions could be reconciled more effectively.

Regulating non-executive directors in Australia : a socio-legal approach

Discusses the role of legislation and codes of conduct in influencing the behaviour of non-executive directors. Outlines the functions of a board of directors and considers the role on non-executive directors in particular. Traces the development of standards of skill required on non-executive directors both under the Australian Corporations Act 2001 and under common law. Questions whether these have brought about a real change in behaviour. Considers whether professionalisation of directorship could be more effective.

Social capital in a tolerant society? a response to treasurer Costello’s presentation to the Sydney Institute

On 16 July 2003 the Australian Government’s Treasurer, the Honourable Peter Costello, addressed the Sydney Institute on his vision for a tolerant Australian society. Drawing from Putnam’s research Costello argued that tolerance will flow from an active voluntary sector. However, Costello’s proposed model for a “tolerant” society fails to acknowledge that all behaviour is strategic and that voluntary association based on disinterested action is not possible. Ultimately, Treasurer Costello’s notion of tolerant society fuelled by an active voluntary sector may not lead to his desired end. Indeed, the promotion of voluntary association may contribute to the ongoing exclusion of citizens with low social capital. Amid the dynamism of the modern era some citizens such as ageing workers, slow or ineffective learners and women may be especially at risk. Accordingly, rather than advocating a policy approach that seeks to build inclusiveness through an active voluntary sector this paper recommends a policy approach that explores ways in which to strengthen learning and the wider involvement of individuals through both formal and informal means.