Copyright, Licences, and Statutory Fraud

In this article we explore the interplay between the law of copyright, contract, and statutory fraud within the digital environment, and in particular with respect to the business of commercial image licensing within the UK.

Making meaningful connections: Using insights from social pedagogy in statutory child and family social work practice

Reports into incidents of child death and serious injury have highlighted consistently concern about the capacity of social workers to communicate skilfully with children. Drawing on data collected as part of an Economic and Social Research Council funded UK-wide research project exploring social workers’ communicative practices with children, this paper explores how approaches informed by social pedagogy can assist social workers in connecting and communicating children. The qualitative research included data generated from 82 observations of social workers’ everyday encounters with children. Social pedagogical concepts of ‘haltung’ (attitude), ‘head, heart and hands’ and ‘the common third’ are outlined as potentially helpful approaches for facilitating the intimacies of inter-personal connections and enhancing social workers’ capacity to establish and sustain meaningful communication and relationships with children in the face of austere social, political and organisational contexts.

Live Work: The Impact of Direct Encounters in Statutory Child and Family Social Wor

The aim of this research project was to examine the impact of direct work on practitioners in the field of statutory child protection. The author’s premise was that this work was anything but straightforward and that surprisingly, given the intense scrutiny on Children’s Services following a child death, there was little research into the day-to-day practice of front line staff. The aim was to explore whether psychoanalytic theory could be useful in understanding and making sense of the social work task. Data was collected through observation and semi-structured interviews in one Local Authority Child in Need team over a period of six months. The findings indicated that practitioners experienced direct work with some individuals and families as profoundly disturbing and that this affected them physiologically as well as psychologically. These effects persisted over time and appeared very difficult for the workers to process or articulate. This could be expressed through embodied or non-verbal communication in the interview. Practitioners appeared to be ‘inhabited’ by particular clients, suggesting phenomena such as projective identification were in operation. The intensity and persistence of the impact on the practitioners appears to be directly related to the quality, nature and intensity of the psychic defences functioning for the particular client. Significantly, the research indicated that when practitioners were dealing with the negative and disturbing projections from the (adult) clients it seemed from the data that the focus on the child would slip so that the child appeared to recede from view. Symptoms experienced by the practitioners were akin to trauma and research and theory on primary and secondary trauma were considered. Other issues raised included shame, which affects the clients, practitioners and the organisation and the meaning and implications of this are explored. Links between neuroscience and projective identification are addressed as well as the role of the organisation, particularly as a container for these toxic and disturbing encounters.

Impact of radiofrequency ablation for patients with varicose veins on the budget of the German statutory health insurance system

Objectives: In contrast to other countries, surgery still represents the common invasive treatment for varicose veins in Germany. However, radiofrequency ablation, e.g. ClosureFast, becomes more and more popular in other countries due to potential better results and reduced side effects. This treatment option may cause less follow-up costs and is a more convenient procedure for patients, which could justify an introduction in the statutory benefits catalogue. Therefore, we aim at calculating the budget impact of a general reimbursement of ClosureFast in Germany. Methods: To assess the budget impact of including ClosureFast in the German statutory benefits catalogue, we developed a multi-cohort Markov model and compared the costs of a “World with ClosureFast” with a “World without ClosureFast” over a time horizon of five years. To address the uncertainty of input parameters, we conducted three different types of sensitivity analysis (one-way, scenario, probabilistic). Results: In the Base Case scenario, the introduction of the ClosureFast system for the treatment of varicose veins saves costs of about 19.1 Mio. € over a time horizon of five years in Germany. However, the results scatter in the sensitivity analyses due to limited evidence of some key input parameters. Conclusions: Results of the budget impact analysis indicate that a general reimbursement of ClosureFast has the potential to be cost-saving in the German Statutory Health Insurance.

The implication of a term of good faith in commercial leases

Much has been written in the past decade on the subject of the implication of a term of good faith in contracts in Australia, particularly since the judgment Priestley JA in Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234. Except for an early article by Rachael Mulheron, 'Good Faith and Commercial Leases: New Opportunities for the Tenant' (1996) 4 APLJ 223, very little else has been written with respect to the possible application of the doctrine to the commercial leases.With the advent of two later New South Wales Supreme Court decisions Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349 and, more recently, Advance Fitness v Bondi Diggers [1999] NSWSC 264, the question of the application of the doctrine in the commercial leasing context has been examined. This article briefly considers the nature and substance of the doctrine against the background of the relationship of lessor and lessee and examines in some depth the Australian decisions on commercial leases where it has been sought, unsuccessfully, to apply the doctrine. The article concludes by suggesting that as a standard commercial lease usually covers the field of agreement between lessor and lessee and as a lessee has a high degree of statutory protection derived from equitable principles, there may be little room for the operation of the doctrine in this legal environment.

Electronic workplace surveillance and employee privacy : a comparative analysis of privacy protection in Australia and the United States

More than a century ago in their definitive work “The Right to Privacy” Samuel D. Warren and Louis D. Brandeis highlighted the challenges posed to individual privacy by advancing technology. Today’s workplace is characterised by its reliance on computer technology, particularly the use of email and the Internet to perform critical business functions. Increasingly these and other workplace activities are the focus of monitoring by employers. There is little formal regulation of electronic monitoring in Australian or United States workplaces. Without reasonable limits or controls, this has the potential to adversely affect employees’ privacy rights. Australia has a history of legislating to protect privacy rights, whereas the United States has relied on a combination of constitutional guarantees, federal and state statutes, and the common law. This thesis examines a number of existing and proposed statutory and other workplace privacy laws in Australia and the United States. The analysis demonstrates that existing measures fail to adequately regulate monitoring or provide employees with suitable remedies where unjustifiable intrusions occur. The thesis ultimately supports the view that enacting uniform legislation at the national level provides a more effective and comprehensive solution for both employers and employees. Chapter One provides a general introduction and briefly discusses issues relevant to electronic monitoring in the workplace. Chapter Two contains an overview of privacy law as it relates to electronic monitoring in Australian and United States workplaces. In Chapter Three there is an examination of the complaint process and remedies available to a hypothetical employee (Mary) who is concerned about protecting her privacy rights at work. Chapter Four provides an analysis of the major themes emerging from the research, and also discusses the draft national uniform legislation. Chapter Five details the proposed legislation in the form of the Workplace Surveillance and Monitoring Act, and Chapter Six contains the conclusion.

A comparative study – regulatory requirements on subdivisions for increasing passive cooling

This is the third in a series of reports planned for this project. The aim of this research is to conduct a comparative study of current legislation or guidelines at the federal, state and local government levels to confirm if any natural ventilation criteria are required at the subdivision development stage of planning. It also seeks to discover if there are any other incentives, statutory planning or development principles that encourage developers to orient subdivision lots to maximize natural ventilation for the dwellings. Findings from the research in this report are intended to contribute to the discussion on the development of an enhanced lot rating methodology for sustainable subdivisions as documented in other reports in this series.

Shifting the child protection juggernaut to earlier intervention

"For every complex problem there is a solution that is simple, neat and wrong (M.L. Mencken, US writer and social commentator). Nowhere is this quote more apt than when applied to finding over-simplified solutions to the complex problem of looking after the safety and well-being of vulnerable children. The easiest formula is, of course, to ‘rescue children from dysfunctional families’, a line taken recently in the monograph by the right wing think tank, Centre for Independent Studies (Sammut & O’Brien 2009). It is reasoning with fatal flaws. This commentary provides a timely reminder of the strong arguments which lie behind the national and international shift to supporting children and families through universal and specialist community-based services, rather than weighting all resources into statutory child protection interventions. A brief outline of the value of developing the resources to support children in their families, and the problems with 'rescuing' children through the child protection system are discussed.

An investigation into how work-related road safety can be enhanced

Despite the facts that vehicle incidents continue to be the most common mechanism for Australian compensated fatalities and that employers have statutory obligations to provide safe workplaces, very few organisations are proactively and comprehensively managing their work-related road risks. Unfortunately, limited guidance is provided in the existing literature to assist practitioners in managing work-related road risks. The current research addresses this gap in the literature. To explore how work-related road safety can be enhanced, three studies were conducted. Study one explored the effectiveness of a range of risk management initiatives and whether comprehensive risk management practices were associated with safety outcomes. Study two explored barriers to, and facilitators for, accepting risk management initiatives. Study three explored the influence of organisational factors on road safety outcomes to identify optimal work environments for managing road risks. To maximise the research sample and increase generalisability, the studies were designed to allow data collection to be conducted simultaneously drawing upon the same sample obtained from four Australian organisations. Data was collected via four methods. A structured document review of published articles was conducted to identify what outcomes have been observed in previously investigated work-related road safety initiatives. The documents reviewed collectively assessed the effectiveness of 19 work-related road safety initiatives. Audits of organisational practices and process operating within the four researched organisations were conducted to identify whether organisations with comprehensive work-related road risk management practices and processes have better safety outcomes than organisations with limited risk management practices and processes. Interviews were conducted with a sample of 24 participants, comprising 16 employees and eight managers. The interviews were conducted to identify what barriers and facilitators within organisations are involved in implementing work-related road safety initiatives and whether differences in fleet safety climate, stage of change and safety ownership relate to work-related road safety outcomes. Finally, questionnaires were administered to a sample of 679 participants. The questionnaires were conducted to identify which initiatives are perceived by employees to be effective in managing work-related road risks and whether differences in fleet safety climate, stage of change and safety ownership relate to work-related road safety outcomes. Seven research questions were addressed in the current research project. The key findings with respect to each of the research questions are presented below. Research question one: What outcomes have been observed in previously investigated work-related road safety initiatives? The structured document review indicated that initiatives found to be positively associated with occupational road safety both during and after the intervention period included: a pay rise; driver training; group discussions; enlisting employees as community road safety change agents; safety reminders; and group and individual rewards. Research question two: Which initiatives are perceived by employees to be effective in managing work-related road risks? Questionnaire findings revealed that employees believed occupational road risks could best be managed through making vehicle safety features standard, providing practical driver skills training and through investigating serious vehicle incidents. In comparison, employees believed initiatives including signing a promise card commitment to drive safely, advertising the organisation’s phone number on vehicles and consideration of driving competency in staff selection process would have limited effectiveness in managing occupational road safety. Research question three: Do organisations with comprehensive work-related road risk management practices and processes have better safety outcomes than organisations with limited risk management practices and processes? The audit identified a difference among the organisations in their management of work-related road risks. Comprehensive risk management practices were associated with employees engaging in overall safer driving behaviours, committing less driving errors, and experiencing less fatigue and distraction issues when driving. Given that only four organisations participated in this research, these findings should only be considered as preliminary. Further research should be conducted to explore the relationship between comprehensiveness of risk management practices and road safety outcomes with a larger sample of organisations. Research question four: What barriers and facilitators within organisations are involved in implementing work-related road safety initiatives? The interviews identified that employees perceived six organisational characteristics as potential barriers to implementing work-related road safety initiatives. These included: prioritisation of production over safety; complacency towards work-related road risks; insufficient resources; diversity; limited employee input in safety decisions; and a perception that road safety initiatives were an unnecessary burden. In comparison, employees perceived three organisational characteristics as potential facilitators to implementing work-related road safety initiatives. These included: management commitment; the presence of existing systems that could support the implementation of initiatives; and supportive relationships. Research question five: Do differences in fleet safety climate relate to work-related road safety outcomes? The interviews and questionnaires identified that organisational climates with high management commitment, support for managing work demands, appropriate safety rules and safety communication were associated with employees who engaged in safer driving behaviours. Regression analyses indicated that as participants’ perceptions of safety climate increased, the corresponding likelihood of them engaging in safer driving behaviours increased. Fleet safety climate was perceived to influence road safety outcomes through several avenues. Some of these included: the allocation of sufficient resources to manage occupational road risks; fostering a supportive environment of mutual responsibility; resolving safety issues openly and fairly; clearly communicating to employees that safety is the top priority; and developing appropriate work-related road safety policies and procedures. Research question six: Do differences in stage of change relate to work-related road safety outcomes? The interviews and questionnaires identified that participants’ perceptions of initiative effectiveness were found to vary with respect to their individual stage of readiness, with stage-matched initiatives being perceived most effective. In regards to safety outcomes, regression analyses identified that as participants’ progress through the stages of change, the corresponding likelihood of them being involved in vehicle crashes decreases. Research question seven: Do differences in safety ownership relate to work-related road safety outcomes? The interviews and questionnaires revealed that management of road risks is often given less attention than other areas of health and safety management in organisations. In regards to safety outcomes, regression analyses identified that perceived authority and perceived shared ownership both emerged as significant independent predictors of self-reported driving behaviours pertaining to fatigue and distractions. The regression models indicated that as participants’ perceptions of the authority of the person managing road risks increases, and perceptions of shared ownership of safety tasks increases, the corresponding likelihood of them engaging in driving while fatigued or multitasking while driving decreases. Based on the findings from the current research, the author makes several recommendations to assist practitioners in developing proactive and comprehensive approaches to managing occupational road risks. The author also suggests several avenues for future research in the area of work-related road safety.

Insurance : The Laws of Australia

Insurance - the laws of Australia provides insurance practitioners, insurance companies and students with a principles-based, practical guide to insurance law in Australia. It provides comprehensive coverage and analysis of common law principles relating to, and the statutory regulation of, insurance contracts and the operation of an insurance business. The common law and statutory provisions are dealt within the context of marine, life and general insurance.

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.

TAFE Governance Transitions Prophetical

Drama staff from QUT Creative Industries were commissioned by the Dept of Education, Training and the Arts (DETA) to devise a tailor made and highly targeted staff development program for TAFE Queensland Institute Directors and senior managers. The program was designed to assist these senior staff to address a range of change and governance issues in the context of TAFE Queensland’s transition to statutory authority status. In responding to this brief, the QUT team utilised an original applied performance technique known as a ‘Prophetical’ to research, devise and present an interactive case study to TAFE Institute Directors and senior managers. This particular Prophetical portrayed a senior staff team at the fictitious Massey Institute of TAFE, confronted by an escalating series of crises as they try to manage the transition to the fundamentally different business model of a statutory authority.

Approaches for calculation of holding costs in the context of greenfield residential development

There are increasing indications that the contribution of holding costs and its impact on housing affordability is very significant. Their importance and perceived high level impact can be gauged from considering the unprecedented level of attention policy makers have given them recently. This may be evidenced by the embedding of specific strategies to address burgeoning holding costs (and particularly those cost savings associated with streamlining regulatory assessment) within statutory instruments such as the Queensland Housing Affordability Strategy, and the South East Queensland Regional Plan. However, several key issues require further investigation. Firstly, the computation and methodology behind the calculation of holding costs varies widely. In fact, it is not only variable, but in some instances completely ignored. Secondly, some ambiguity exists in terms of the inclusion of various elements of holding costs and assessment of their relative contribution. Perhaps this may in part be explained by their nature: such costs are not always immediately apparent. They are not as visible as more tangible cost items associated with greenfield development such as regulatory fees, government taxes, acquisition costs, selling fees, commissions and others. Holding costs are also more difficult to evaluate since for the most part they must be ultimately assessed over time in an ever-changing environment based on their strong relationship with opportunity cost which is in turn dependant, inter alia, upon prevailing inflation and / or interest rates. This paper seeks to provide a more detailed investigation of those elements related to holding costs, and in so doing determine the size of their impact specifically on the end user. It extends research in this area clarifying the extent to which holding costs impact housing affordability. Geographical diversity indicated by the considerable variation between various planning instruments and the length of regulatory assessment periods suggests further research should adopt a case study approach in order to test the relevance of theoretical modelling conducted.

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.