Accountability of insurers under s 54: Striking the balance between commerciality and consumer protection

Section 54 of the Insurance Contracts Act 1984 (Cth) continues to occupy a prominent position in insurance-related litigation. This section which imposes a concept of causation, or prejudice to the insurer, to restrict an insurer’s reliance upon contractual terms to avoid liability for particular claims, is often before the courts. This note focuses upon the recent High Court of Australia decision in Maxwell v Highway Hauliers Pty Ltd [2014] HCA 33.

Insurance and transport law : controlling insurance contract terms : Section 54 of the Insurance Contracts Act – compliance, recovery and accountability

Commonwealth legislation covering insurance contracts contains numerous provisions designed to control the operation and effect of terms in life and general insurance contracts. For example, the Life Insurance Act 1995 (Cth) contains provisions regulating the consequences attendant upon incorrect statements in proposals [1] and non-payment of premiums, [2] provides that an insurer may only exclude liability in the case of suicide if it has made express provision for such contingency in its policy, [3] and severely restricts the efficacy of conditions as to war risks. [4] The Insurance Contracts Act 1984 (Cth) is even more intrusive and has a major impact upon contractual provisions in the general insurance field. It is beyond the scope of this note to explore all of these provisions in any detail but examples of controls and constraints imposed upon the operation and effect of contractual provisions include the following. A party is precluded from relying upon a provision in a contract of insurance if such reliance would amount to a failure to act with the utmost good faith. [5] Similarly, a policy provision which requires differences or disputes arising out of the insurance to be submitted to arbitration is void, [6] unless the insurance is a genuine cover for excess of loss over and above another specified insurance. [7] Similarly clause such as conciliation clauses, [8] average clauses, [9] and unusual terms [10] are given qualified operation. [11] However the provision in the Insurance Contracts Act that has the greatest impact upon, and application to, a wide range of insurance clauses and claims is s 54. This section has already generated a significant volume of case law and is the focus of this note. In particular this note examines two recent cases. The first, Johnson v Triple C Furniture and Electrical Pty Ltd [2012] 2 Qd R 337, (hereafter the Triple C case), is a decision of the Queensland Court of Appeal; and the second, Matthew Maxwell v Highway Hauliers Pty Ltd [2013] WASCA 115, (hereafter the Highway Hauliers case), is a decision of the Court of Appeal in Western Australia. This latter decision is on appeal to the High Court of Australia. The note considers too the decision of the New South Wales Court of Appeal in Prepaid Services Pty Ltd v Atradius Credit Insurance NV [2013] NSWCA 252 (hereafter the Prepaid Services case).These cases serve to highlight the complex nature of s 54 and its application, as well as the difficulty in achieving a balance between an insurer and an insured's reasonable expectations.

Moderation as judgement practice: Reconciling system level accountability and local level practice

Internationally, recognition of the role of assessment to inform the learning process has received much attention in recent years. Assessment for learning, not just of learning is being supported by an increasing body of literature providing strategies that teachers and their students can incorporate to support the learning process (Assessment Reform Group, 2002; Broadfoot & Black, 2004; James, 2006). Concurrently there has been an increase internationally in systemic accountability requirements of schools in terms of student results. The convergence of these two movements has resulted in some education systems promoting standards-driven reform involving authentic assessment and a re-examination of the relationship between the teacher and the student in the learning process. In this context standards are intended to be used as the basis for judgements of student achievement; while the results from assessment tasks are meant to both inform the teaching/learning process, and to report and track student progress. In such system, the role and reliability of teacher judgement takes centre stage.

Public accountability : the perceived usefulness of School Annual reports

Annual reports are an important component of New Zealand schools’ public accountability. Through the annual report the governance body informs stakeholders about school aims, objectives, achievements, use of resources, and financial performance. We examine the perceived usefulness of the annual report in the discharge of public accountability. We find that 15% of the recipients (mainly parents/caregivers) do not read the annual report because they trust in the school to do the right thing or rely on others to monitor school activities. We find that the annual report is used for a variety of purposes including to determine if the school has conducted its activities effectively and achieved stated objectives and goals; to examine student achievements; to assess financial accountability and performance; and to make decisions about the school as a suitable environment for their child/children. We find that other forms of communication such as school newsletters, parent-teacher interviews, children and other parents are more important sources of information about the school than the annual report.

Frameworks in regulating company directors : rethinking the philosophical foundations to enhance accountability

Sets out a system of corporate governance regulation, aimed at combining legal and social methods of governing director behaviour and at creating a framework flexible enough to accommodate different business and ethical cultures. Outlines the theoretical basis of corporate governance and the broad responsibilities of directors, and discusses the extent to which they can and should be regulated. Discusses the constitution of a regulatory framework encompassing law, soft law and best practice, and ethics.

Accountability, transparency, impartiality, and other ethical issues : improving democracy reduces violence

Violence is detrimental to the stability of any democracy. If people are too scared to vote, or if they lack confidence in their government to bring peace, how will their voices be heard? By discussing how accountability, transparency, and ethics dissuade social confusion, improve democracy, and lessen occurrences of violence, perhaps one can increase the success in the instance of stabilizing a new democracy or reinvigorating an old one. Theoretically resulting in more peaceful governmental transitions; accountability, transparency, and ethics in democracy are a must to build social trust, improve democracy, and reduce violence.

Examining accountability dimensions in state-owned enterprises

This paper examines accountability in the context of New Zealand's state-owned enterprises (SOEs), and considers an accountability framework which extends beyond traditional (upward and outward) dimensions. While traditional accountability dimensions are clearly detailed in the legislation, less clear are the dilemmas and contradictions faced by SOEs, balancing multiple interests, and at times, conflicting objectives. These issues are explored through interviews conducted in two phases over a two year period with senior executives from 12 of the then 17 SOEs operating in New Zealand. Findings reveal a number of dimensions of accountability that extend beyond current conceptualisations of accountability in the public sector, often including multiple directions of accountability. Implications suggest the need for a more explicit framework of accountability relevant to the SOE context, which may serve useful in identifying potential pathways to conflict mitigation.

Public accountability : the perceived usefulness of school annual reports

Annual reports are an important component of New Zealand schools’ public accountability. Through the annual report the governance body informs stakeholders about school aims, objectives, achievements, use of resources, and financial performance. This paper identifies the perceived usefulness of the school annual report to recipients and the extent to which it serves as an instrument of accountability and/or decision-usefulness. The study finds that the annual report is used for a variety of purposes, including: to determine if the school has conducted its activities effectively and achieved stated objectives and goals; to examine student achievements; to assess financial accountability and performance; and to make decisions about the school as a suitable environment for their child/children. Nevertheless, the study also finds that other forms of communication are more important sources of information about the school than the annual report which is seen to fall short of users’ required qualities of understandability, reliability and readability. It would appear imperative that policy makers review the functional role of the school annual report which is a costly document to prepare. Further, school managers need to engage in alternative means to communicate sufficient and meaningful information in the discharge of public accountability.

Role and purpose of standards in the context of national curriculum and assessment reform for accountability, improvement and equity in student learning

In this article our starting point is the current context of national curriculum change and intense speculation about the assessment, standards and reporting. It is written against a background of accountability measures and improvement imperatives, and focuses attention on standards as offering representations of quality. We understand standards to be constructs that aim to achieve public credibility and utility. Further, they can be examined for the purposes they seek to serve and also their expected functions. Fitness for purpose is therefore a useful notion in considering the nature of standards. Our interest in the discussion is the ‘fit’ between how standards are formulated and how they are used in practice, by whom and for what purposes. A related interest is in the matter of how standards can be harnessed to realise improvement.

Accountability through high-stakes testing and curriculum change

The motivation for secondary school principals in Queensland, Australia, to investigate curriculum change coincided with the commencement in 2005 of the state government’s publication of school exit test results as a measure of accountability. Aligning the schools’ curriculum with the requirements of high-stakes testing is considered by many academics and teachers as negative outcome of accountability for reasons such as ‘teaching to the test’ and narrowing the curriculum. However, this article outlines empirical evidence that principals are instigating curriculum change to improve published high-stakes test results. Three principals in this study offered several reasons as to why they wished to implement changes to school curricula. One reason articulated by all three was the pressures of accountability, particularly through the publication of high-stakes test data which has now become commonplace in education systems of many Western Nations.