The implication of a term of good faith in commercial leases — A brief response

By way of response to Professor Duncan's article,1 this article examines the theoretical basis for the implication of contractual terms, particularly the implication of a term at law. In this regard the recent decision of Barrett J in Overlook v Foxtel [2002] NSWSC 17 is considered, to the extent that it provides guidance concerning the implication of an obligation of good faith in the context of a commercial contract. A number of observations are made which may be considered likely to have application to the relationship of commercial landlord and tenant. The conclusion reached is that although the commercial landlord and tenant contractual relationship is highly regulated, this may not deny a remedy to a tenant who is the victim of a landlord's 'bad faith'. Finally, the article concludes by considering the extent to which it may be possible to contractually exclude the implied obligation of good faith.

Detection and prevention of distributed denial of services attacks by collaborative effort of software agents, first prototype implementation

Distributed Denial of Services DDoS, attacks has become one of the biggest threats for resources over Internet. Purpose of these attacks is to make servers deny from providing services to legitimate users. These attacks are also used for occupying media bandwidth. Currently intrusion detection systems can just detect the attacks but cannot prevent / track the location of intruders. Some schemes also prevent the attacks by simply discarding attack packets, which saves victim from attack, but still network bandwidth is wasted. In our opinion, DDoS requires a distributed solution to save wastage of resources. The paper, presents a system that helps us not only in detecting such attacks but also helps in tracing and blocking (to save the bandwidth as well) the multiple intruders using Intelligent Software Agents. The system gives dynamic response and can be integrated with the existing network defense systems without disturbing existing Internet model. We have implemented an agent based networking monitoring system in this regard.

Validating denial of service vulnerabilities in web services

The loosely-coupled and dynamic nature of web services architectures has many benefits, but also leads to an increased vulnerability to denial of service attacks. While many papers have surveyed and described these vulnerabilities, they are often theoretical and lack experimental data to validate them, and assume an obsolete state of web services technologies. This paper describes experiments involving several denial of service vulnerabilities in well-known web services platforms, including Java Metro, Apache Axis, and Microsoft .NET. The results both confirm and deny the presence of some of the most well-known vulnerabilities in web services technologies. Specifically, major web services platforms appear to cope well with attacks that target memory exhaustion. However, attacks targeting CPU-time exhaustion are still effective, regardless of the victim’s platform.

Death by Drowning : Gary Bryson's Turtle [A Review]

Accused of being autobiographical, as many debut novels often are, Turtle, upon first reading and further prying, does read as a story wrenched out of Gary Bryson’s own life. In a recent interview with Mandy Sayer, however, he was quick to deny all sorts of archetypal allegations. “Any resemblance to turtles living or dead”, Bryson explained, “is entirely coincidental”. Regardless of the many parallels that align author with protagonist—both were born and raised in a grey-skied Glasgow, both grew up in self-described dysfunctional families, and both returned to the colourless city to attend their mothers’ funerals—the narrative combines bruising black comedy with moments of magic realism. The result is an unlikely but often surprising concoction of twists and turns, each of which mixes the fallibility of memory with the slippery nature of truth. This playfulness between the material world and its metaphorical counterpart raises questions, not only about the curse that poisons its characters, but about the ethical implications of blurring fact and fiction...

Me and my body : the relevance of the difference for the distinction between withdrawing life support and euthanasia

In this paper I discuss David Shaw’s claim that the body of a terminally ill person can be conceived as a kind of life-support, akin to an artificial ventilator. I claim that this position rests upon an untenable dualism between the mind and the body. Given that dualism continues to be attractive to some thinkers, I attempt to diagnose the reasons why it continues to be attractive, as well as to demonstrate its incoherence, drawing on some recent work in the philosophy of psychology. I conclude that, if my criticisms are sound, Shaw’s attempt to deny the distinction between withdrawal and euthanasia fails.

Review of "Violence, Prejudice and Sexuality" by Stephen Tomsen (Routledge, New York and London, 2009)

Tomsen’s book Violence, Prejudice and Sexuality engages with important questions about sexuality and anti homosexual sentiment that criminologists have grappled with for some time. Tomsen’s work refines these questions in the context of essentialism, and notes how this concept has enabled only very specific ways of thinking about and analysing violence, prejudice, and sexuality. Indeed, thinking about the nexus between these three concepts are now almost taken for granted. As Tomsen demonstrates in his discussion of historical understandings of sexual desire, although social constructionism and queer perspectives have challenged essentialist notions of sexuality, research has in many respects upheld a binary understanding of heterosexuality as normal and homosexuality as abnormal. Interestingly, essentialist binaries like this have been conveniently employed in more recent times when activists align with minority status to gain basic human rights. While no one could deny the importance of access to rights and justice, Tomsen notes the danger inherent in arguments like this that draw on essentialism. He argues we are working through similar dichotomies of heterosexuality as normal and homosexuality as abnormal set up in very early research on sexual desire. The key difference now is that, in the rush towards public and political citizenship, ‘heterosexuals are recast as “perpetrators” and homosexuals as “victims”’ (Tomsen 2009: 16). Violence, Prejudice and Sexuality importantly notes this is no less an essentialist dichotomy and no less divisive....

Career paths in the third sector : implications for human resource management

My interest in career paths in the third sector came from three early observations. First, the majority of workers appear to be women, in fact 77% of community sector community services in NSW (O'Donnell, 1985). Second, when asked about their career, most workers express the opinion that they have none. Third, when I examined the individual career paths of community sector workers I was struck by the stop and start nature of their paid work. Even, or perhaps especially, well qualified workers would move out of a position after about two years often to a more difficult position in a new area, with little or no salary increase and little prospect of future promotion. Indeed, there appears to be little career path available. These observations raise a number of important questions, some of which will be explored in this paper. What is the structure of the third sector labour market? What is the staff structure of third sector organisations? Is it true that career paths are unavailable, either within organisations or within the sector? If none exists, why do workers stay in the field? What motivates them? If there is a high turnover of staff, is this the reason? What are the implications of all this? If some sort of career path does exist, why do workers deny having a career? What do we mean by `career' anyway?

Legal issues related to Accountable-eHealth systems in Australia

Information privacy requirements of patients and information requirements of healthcare providers (HCP) are competing concerns. Reaching a balance between these requirements have proven difficult but is crucial for the success of eHealth systems. The traditional approaches to information management have been preventive measures which either allow or deny access to information. We believe that this approach is inappropriate for a domain such as healthcare. We contend that introducing information accountability (IA) to eHealth systems can reach the aforementioned balance without the need for rigid information control. IA is a fairly new concept to computer science, hence; there are no unambiguously accepted principles as yet. But the concept delivers promising advantages to information management in a robust manner. Accountable-eHealth (AeH) systems are eHealth systems which use IA principles as the measure for privacy and information management. AeH systems face three main impediments; technological, social and ethical and legal. In this paper, we present the AeH model and focus on the legal aspects of AeH systems in Australia. We investigate current legislation available in Australia regarding health information management and identify future legal requirements if AeH systems are to be implemented in Australia.

Making a case for social impact assessment in urban development : social impacts and legal disputes in Queensland, Australia

Urban land use planning and policy decisions are often contested, with the multiple stakeholders (business, developers, residents, policymakers and the wider community) frequently holding opposing viewpoints about the issues and best solution. In recent years, however, the participatory process of social impact assessment (SIA) has received significant attention as a way to mitigate conflict, facilitating negotiation and conflict resolution. This paper examines how social impacts have informed development appeals in Australia, focussing on ten cases from the Queensland Planning and Environment Court (QPEC). Half are appeals from community members (typically neighbours) wanting to oppose approvals and half from organisations appealing against City Councils’ decisions to deny their development applications. While legal challenges do not necessarily reflect attitudes and practices, they provide a means to begin to assess how social impacts (although not often explicitly defined as such) inform development related disputes. Based on the nature and outcomes of 10 QPEC cases, we argue that many legal cases could have been avoided if SIA had been undertaken appropriately. First, the issues in each case are clearly social, incorporating impacts on amenity, the character of an area, the needs of different social groups, perceptions of risk and a range of other social issues. Second, the outcomes and recommendations from each case, such as negotiating agreements, modifying plans and accommodating community concerns would have been equally served thorough SIA. Our argument is that engagement at an early stage, utilising SIA, could have likely achieved the same result in a less adversarial and much less expensive and time-consuming environment than a legal case.

Children, young people and their social and spatial citizenship rights

The use of public space by children and young people is a contentious issue in a number of developed and developing countries and a range of measures are frequently deployed to control the public space which usually deny the rights of children and young people to claim the space for their use. Child and youth curfews, oppressive camera surveillance and the unwarranted attentions of police and private security personnel as control measures in public space undermine attempts to secure greater participation by children and young people in constructing positive strategies to address concerns that impact on them and others in a local area. Evidence from research in Scotland undertaken by Article 12 (2000) suggests that young people felt strongly that they did not count in local community matters and decision making and the imposition on them of a curfew by the adult world of the local area created resentment both at the harshness of the measure and disappointment at an opportunity lost to be consulted and involved in dealing with perceived problems of the locality. This is an important cluster of linked issues as Brown (1998:116) argues that young people are ‘selectively constructed as “problem” and “other” with their concerns marginalised, their lifestyles problematised and their voices subdued’, and this flows into their use of public space as their claims to its use as an aspect of social citizenship are usually cast as inferior or rejected as they ‘stand outside the formal polity’ as ‘non persons’. This has major implications for the ways in which young people view their position in a community as many report a feeling of not being wanted, valued or tolerated. The ‘youth question’ according to Davis (1990) acts as a form of ‘screen’ on which observers and analysts project hopes and fears about the state of society, while in the view of Loader (1996:89) the ‘question of young people’ sits within a discourse comprising two elements, the one being youth, particularly young males, as the ‘harbinger of often unwelcome social change and threat’ and the other element ‘constructs young people as vulnerable’. This discourse of threat is further exemplified in the separation of children from teenagers as Valentine (1996) suggests, the treatment of younger children using public space is often dramatically different to that of older children and the most feared stage of all, 'youth'

Against Rehabilitation; For Reparitive Justice

The difficulties of re-imagining the possible relationships between crime and justice in capitalist societies, and imagining the possible meanings of democracy in societies characterised by gross inequalities of knowledge, and exclusion of the majority from political decisions are well known. One such difficulty stems from the impossible necessity of maintaining stances of both constant reform and constant critique (see Carlen, 2012). Confronted with economic and cultural inequalities which routinely deny ideals of justice and democracy, there can be a temptation to suppress (or bracket-off) troubling knowledge of criminal justice's and democracy's maligned underbellies and instead talk 'as if' criminal justice's ideal play of governance is always and already realised in its rhetoric. In some senses, this 'as if' talk is aspirational and it is difficult to see how it could be otherwise if more just conceptions of criminal justice and more democratic forms of democracy are to be conceived. However, when, as often happens, aspirational criminal justice concepts become routinised and acted upon as if they can be realised without fundamental social change, they become penal imaginaries, part of a taken-for-granted ideological baggage which, because it is taken-for-granted, obstructs critique (see Carlen, 2008). One such penal imaginary is the concept of rehabilitation, a concept which has a long history of justifying almost every kind of non-lethal response to lawbreaking and which is currently being reborn yet again in theories of criminal desistance and anti-prison campaigns as well as in the more invidious rehabilitation industry with its sales of programmes for cognitive reform.

Exploring pedestrian accessibility and walkability : insight from public place observations in inner-urban higher density Brisbane, Australia

As planners work to create more sustainable and liveable urban environments, a priority is to transition away from prioritising the automobile and towards enhancing the pedestrian experience. Thus, this research explores the experience of pedestrian accessibility in inner-urban higher-density Brisbane in Australia, drawing on findings from semi-structured in-depth interviews with 24 residents and over 100 hours of public place observations in three case-study neighbourhoods. The interviews took place in residents homes and explored their experience of higher density living and their neighbourhood, whilst observations were recorded through a combination of methods including photographs, sketch maps, recordings and field journals. Observation locations included retail and commercial space, roads, parkland and open space, with multiple observations at each location. A thematic analysis identified common themes in both interviews and the observations, with this paper focusing on residents’ lived experience in urban built environments. This analysis revealed that pedestrian accessibility is linked to access to local amenities and direct routes, aesthetics, sense of community, ownership of space and safety. In particular, observations revealed how pedestrian accessibility and route-taking works with, against or in spite of the design features of urban environments, as well as the importance of the social use of the built environment. Residents spoke about although walking quick and preferred for local amenities, the decision to walk was moderated by factors such as time of day and perceived safety. Measures to ensure and improve the pedestrian accessibility of urban areas needs to take into account the propensity for people to prefer and improvise direct routes (often to the detriment of traffic safety considerations), the importance of ongoing maintenance and upgrading of walking infrastructure and the importance of aesthetically pleasing and safe walking environments. By combining interviews and observations, this research highlights the current dominance of the automobile culture in Brisbane and the layers of meaning, experiences and complexity hidden within the pedestrian experience.