Australian Legislation Research Articles

The Use of Communication Apps by Medical Staff in the Australian Health Care System: Survey Study on Prevalence and Use.

BackgroundThe use of communication apps on mobile phones offers an efficient, unobtrusive, and portable mode of communication for medical staff. The potential enhancements in patient care and education appear significant, with clinical details able to be shared quickly within multidisciplinary teams, supporting rapid integration of disparate information, and more efficient patient care. However, sharing patient data in this way also raises legal and ethical issues. No data is currently available demonstrating how widespread the use of these apps are, doctor’s attitudes towards them, or what guides clinician choice of app.ObjectiveThe objective of this study was to quantify and qualify the use of communication apps among medical staff in clinical situations, their role in patient care, and knowledge and attitudes towards safety, key benefits, potential disadvantages, and policy implications.MethodsMedical staff in hospitals across Victoria (Australia) were invited to participate in an anonymous 33-question survey. The survey collected data on respondent’s demographics, their use of communication apps in clinical settings, attitudes towards communication apps, perceptions of data “safety,” and why one communication app was chosen over others.ResultsCommunication apps in Victorian hospitals are in widespread use from students to consultants, with WhatsApp being the primary app used. The median number of messages shared per day was 12, encompassing a range of patient information. All respondents viewed these apps positively in quickly communicating patient information in a clinical setting; however, all had concerns about the privacy implications arising from sharing patient information in this way. In total, 67% (60/90) considered patient data “moderately safe” on these apps, and 50% (46/90) were concerned the use of these apps was inconsistent with current legislation and policy. Apps were more likely to be used if they were fast, easy to use, had an easy login process, and were already in widespread use.ConclusionsCommunication app use by medical personnel in Victorian hospitals is pervasive. These apps contribute to enhanced communication between medical staff, but their use raises compliance issues, most notably with Australian privacy legislation. Development of privacy-compliant apps such as MedX needs to prioritize a user-friendly interface and market the product as a privacy-compliant comparator to apps previously adapted to health care settings.

A human rights-based approach to compulsory treatment of young people experiencing mental disorder

ABSTRACTThe prevalence and complexity of mental disorder amongst children and young people is increasing, with a younger age of onset. Additionally, in recent decades there has been an international shift in approach to the issue of mental disorder, from that based on a medical model towards a human-rights-based approach. This shift is embodied in the Convention on the Rights of Persons with Disabilities and is purportedly adopted in Australian government legislation and policy. Using Victoria as a case study, this article explores the meaning of a human-rights-based approach to children and young people experiencing mental disorder. It considers relevant legislation, statistical data and Victorian Mental Health Tribunal cases to identify deficiencies in the Victorian legislation and its implementation. It concludes that, while a human-rights-based approach is preferable to one based on a medical model, the Victorian Mental Health Act and related legislation in other States and Territories must be amended to better realise the human rights of children and young people experiencing mental disorder.

Australian Legislation Concerning Matters of International Law 2016

Australian Legislation Concerning Matters of International Law 2016

Smart phones and surgeons: privacy and legal issues in Australian healthcare

Smartphone use is widespread and increasing in health with potential to revolutionise many aspects of care. We reviewed current Australian Government legislation as well as hospital, legal and industry body guidelines to clarify best practice and identify technological solutions that satisfy both patients and clinicians alike. Most health services surveyed did not have a policy that appropriately addressed smartphone use by clinicians. Where use was addressed, it was typically banned or allowed with incomplete guidelines non-compliant with legislation. There is an urgent need to develop policies that recognise the ubiquity of smartphone use in healthcare, yet protect patient privacy.

Mitogenomic analysis of the Australian lungfish (Neoceratodus forsteri) reveals structuring of indigenous riverine populations and late Pleistocene movement between drainage basins

Neoceratodus forsteri: is a freshwater species of Dipnoan currently listed as ‘vulnerable to extinction’ under Australian legislation. The species is restricted to at least two indigenous riverine populations in southeastern Queensland, and several other putatively translocated populations. Current understanding of genetic relationships among populations is based on studies of allozymes, microsatellites and mitochondrial DNA (mtDNA) fragments. A notable feature of all these datasets was low genetic variability. Here we sequence the complete mitogenome of 71 N. forsteri individuals from five populations to improve resolution of mtDNA diversity, examine relationships among populations, and evaluate recent demographic history. We recorded 137 variable positions forming 41 haplotypes in the 16,573 bp mitogenome alignment. Strong genetic structure was observed among riverine samples (global ΦST = 0.342) in a pattern consistent with translocation history. Tinana Creek was confirmed as an isolated and genetically unique subpopulation that should be recognized as a distinct management unit. Two previously unreported mtDNA clades (0.46% mean divergence) were found and suggest that genetic exchange among coastal catchments may have been facilitated by riverine connections on the exposed continental shelf during the late Pleistocene. Extended Bayesian skyline analysis showed no evidence for recent historical change in female effective population size, and codon-based selection tests found no evidence for positive selection in coding genes. Overall, our results emphasise the utility of the full mtDNA molecule for capturing population structure in taxa with low genetic diversity. In such cases, informative variation may be scattered across disparate parts of the mitogenome. Surveying relatively short fragments of mtDNA may lead to significant underestimates of population structure when applied to threatened species with low genetic diversity.

Advance Care Planning for People with Dementia in Western Australia: An Examination of the Fit Between the Law and Practice

This article examines the ‘fit’ between the Western Australian legislation on advance care planning (ACP) and health professionals’ experiences implementing this in relation to persons with dementia. The legislative provisions are outlined, and a qualitative study of experiences with ACP among 19 health professionals, all engaged in the care of persons with dementia, is described. Based on these interviews, the authors propose three themes: ‘navigating risk’, ‘the therapeutic journey’ and ‘the most agreeable outcome’ to describe current practice in this area. The authors conclude that ACP in this context is aimed at minimising risk, establishing consensus and achieving the ‘most agreeable outcome’ for the person and their family, rather than privileging the individual autonomy of the person engaging in ACP. The implications for policy and law makers regarding possible reform of ACP in relation to persons with dementia are discussed.

Compilation and traits of Australian bird species killed by cats

House cats Felis catus have contributed to the extinction of many bird species on islands, but their impact on continental bird faunas is less well resolved. Here, we compile and analyse a comprehensive record of all bird species known to be killed by feral cats at a continental scale. From published studies and unpublished data, we document predation by feral and pet cats on 357 bird species in Australia, including 338 Australian (non-vagrant) native bird species (=45.6% of the 741 Australian native bird species, excluding vagrants). This tally included 24 species listed as threatened or extinct by the IUCN (40% of the 58 non-vagrant Australian species listed as threatened), and 71 of the 117 bird species (61%) listed as threatened under Australian legislation (or species with one or more subspecies so listed). These tallies are substantially larger than reported in previous reviews. We provide the first continental-scale attempt to model bird species' traits that are associated with likelihood of being killed by cats, and use such modelling to attempt to redress some inevitable biases in compilation of predation records on birds. We conclude that the likelihood of being killed by a cat was highest for bird species that are restricted to islands, are of intermediate body mass (ca. 60–300g), and nest and forage on the ground, and least likely for bird species occurring mostly in rainforests and wetlands. We also identify a set of bird species most likely to be threatened by cat-predation and hence most likely to benefit from enhanced management of cats. This study does not specifically evaluate the impact of cats on bird populations or on the conservation of Australian birds, but our results suggest that such impact may be much more pervasive than previously documented.

Psychiatric advance directives in Australian mental-health legislation.

Following the recent widespread reform of mental-health legislation in Australia, psychiatric advance directives (PADs) have now been incorporated in four jurisdictions. We contextualise the potential role for PADs within the Australian legal framework and note their varying introduction across jurisdictions, with a focus on progressive legislation in the Australian Capital Territory (ACT). The formal recognition of PADs effectively shifts the trajectory of mental-health law towards a stronger recognition of consumer autonomy, albeit to varying degrees across jurisdictions. The most inspiring of these changes may be seen in the ACT Act, where an innovative framing of PAD provisions creates a safe space for clinicians and patients to engage, build therapeutic alliances and develop appropriate frameworks for further change.

The Wayward Dog: Is the Australian native dog or Dingo a distinct species?

The taxonomic identity and status of the Australian Dingo has been unsettled and controversial since its initial description in 1792. Since that time it has been referred to by various names including Canis dingo, Canis lupus dingo, Canis familiaris and Canis familiaris dingo. Of these names C. l. dingo and C. f. dingo have been most often used, but it has recently been proposed that the Australian Dingo should be once again recognized as a full species—Canis dingo. There is an urgent need to address the instability of the names referring to the Dingo because of the consequences for management and policy. Therefore, the objective of this study was to assess the morphological, genetic, ecological and biological data to determine the taxonomic relationships of the Dingo with the aim of confirming the correct scientific name. The recent proposal for Canis dingo as the most appropriate name is not sustainable under zoological nomenclature protocols nor based on the genetic and morphological evidence. Instead we proffer the name C. familiaris for all free-ranging dogs, regardless of breed and location throughout the world, including the Australian Dingo. The suggested nomenclature also provides a framework for managing free-ranging dogs including Dingoes, under Australian legislation and policy. The broad principles of nomenclature we discuss here apply to all free-roaming dogs that coexist with their hybrids, including the New Guinea Singing Dog.

Article 10(1) of the International Covenant on Civil and Political Rights (ICCPR) and Australian prisons

ABSTRACTArticle 10(1) of the International Covenant on Civil and Political Rights requires that ‘[a]ll persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person’. There is a body of international law that elaborates on its requirements. Article 10(1) and domestic legislation that incorporates this requirement have direct implications for how managers and staff within prisons behave towards those in their custody. In general, Australian prisons do not comply well with these requirements. This article first reviews the intent of Article 10(1) and guidance from the United Nations Human Rights Committee about its operation. Secondly, it reviews relevant Australian legislation and documents a number of ways in which Australian prison practice fails to live up to these standards. Thirdly, it identifies two important barriers to be overcome to address this situation. It concludes that a justice reinvestment approach has the potential to assist Australia towards compliance with Article 10(1).

Regulating work in the gig economy: What are the options?

AbstractPaid work associated with digital platform businesses (in taxi, delivery, maintenance and other functions) embodies features which complicate the application of traditional labour regulations and employment standards. This article reviews the extent of this type of work in Australia, and its main characteristics. It then considers the applicability of existing employment regulations to these ‘gig’ jobs, citing both Australian and international legislation and case law. There is considerable uncertainty regarding the scope of traditional regulations, minimum standards and remedies in the realm of irregular digitally mediated work. Regulators and policymakers should consider how to strengthen and expand the regulatory framework governing gig work. The article notes five major options in this regard: enforcement of existing laws; clarifying or expanding definitions of ‘employment’; creating a new category of ‘independent worker’; creating rights for ‘workers’, not employees; and reconsidering the concept of an ‘employer’. We review the pros and cons of these approaches and urge regulators to be creative and ambitious in better protecting the minimum standards and conditions of workers in these situations.

Standing on the Edge \u2013 What Type of \u201cExclusive Licensees\u201d Should be Able to Initiate Patent Infringement Actions?

In patent laws around the world, exclusive licensees often have standing to initiate infringement actions if the relevant patentee(s) is also added to the suit. Australian patent legislation specifies that exclusive licensees have this power and, correspondingly, the definition of “exclusive licensee” clearly permits licensees to initiate infringement actions if they exclusively control the full complement of rights conferred by a patent. However, an important question remains: Does the definition of exclusive licensee include licensees that exclusively control only a portion of the rights conferred by a patent (e.g. to import and sell an invention but not make it)? The Full Court of the Federal Court of Australia has, through legislative interpretation, recently answered this question in the negative. Arguably, this interpretation is correct as a matter of statutory construction, but is it correct as a matter of patent policy? This article examines this final question via two approaches: (i) by extending the orthodox economic rationale for patents to the issue at hand, in particular by examining the role of exclusive licensing in market economies; and (ii) by evaluating the role of standing for exclusive licensees in the context of world patent harmonisation and the corresponding approaches in the UK and US.

Policy options for extending standardized tobacco packaging.

Smoking is a public health problem that will cause 1 billion deaths in the 21st century, if current smoking patterns persist. (1) Tobacco companies' aggressive marketing has fostered tobacco use by creating brands and linking these to attributes and identities that users and susceptible non-users value. Although many countries now restrict traditional marketing media, tobacco companies have developed increasingly creative strategies to encourage experimentation with tobacco among non-users and deter quitting among users. Packaging has provided an important and until recently, largely unregulated, conduit for these marketing messages and has communicated appealing imagery to young people while using known and familiar brand symbols to reassure existing tobacco users. The World Health Organization's Framework Convention on Tobacco Control (FCTC) (2) obliges Parties to address tobacco packaging. Implementation guidelines for Articles II (3) and 13 (4) include consideration of plain packaging and recognize the myriad ways in which tobacco companies have used packaging to promote tobacco use. In response, Australia, France, Georgia, Ireland, New Zealand, Norway and the United Kingdom of Great Britain and Northern Ireland have either introduced or will soon be introducing standardized or plain packaging. Hungary, Romania, Slovenia and Thailand have already passed legislation to introduce plain packaging, and several other countries (including Belgium, Canada, Chile, Singapore and Sri Lanka, among others) are formally considering this policy. Plain packaging replaces the attractive brand livery displayed on tobacco packs with an aversive colour and standardized text, and is typically combined with larger pictorial warning labels, if these are not already in place. The policy recognizes that on-pack brand imagery has positioned tobacco use as an aspirational behaviour and fostered uptake among young people, (5) transforming tobacco packages from attractive display items to highly unappealing articles. Evidence from Australia shows standardized packaging and larger pictorial warning labels have reduced smokings appeal among young people, (6) increased demand for cessation support and decreased smoking prevalence. (8) Evaluations confirm predictions from experimental and other studies used to support the introduction of this policy. (8) Despite the intuitive logic of using packaging to deter rather than facilitate experimentation with tobacco products, other countries have been cautious in following Australia's approach. The time taken for plain packaging to be more widely adopted and implemented in other countries has caused some frustration among public health researchers and advocates. Nevertheless, this time lag has also provided an opportunity to examine how tobacco companies have reacted to Australia's new policy environment, and to consider whether and where Australian legislation could be extended. We suggest that countries planning to introduce standardized packaging have an opportunity to innovate in at least four ways: (i) restricting or banning brand variant names; (ii) developing larger and more salient onpack warnings; (iii) requiring tobacco products themselves to use dissuasive colours; and (iv) using packaging to create cessation portals that direct tobacco users to quit support. First, the introduction of standardized packaging in Australia saw a rapid increase in brand variant names (or descriptors) such as Marlboro Silver Fine Scent, Winfield Optimum Crush Sky and Peter Stuyvesant New York Blend. (9) These variant names attempt to recreate connotations formerly aroused by visual brand imagery and aim to reassure smokers, deter quitting and potentially attract new users. Recent work suggests the more descriptors used, the more attractive a pack appears. (10) Variants potentially mislead users by linking tobacco to appealing attributes or by minimizing the harm caused by tobacco use and serve no purpose other than to create marketing appeals. …

Luminal Clinical

<b>Luminal Clinical</b>

Foreign Beneficiaries and Australian Trusts: Their Position Is Still No Clearer

In this article, the author examines the Australian legislation concerning the taxation of capital gains derived by foreign beneficiaries of Australian trusts. He challenges the Commissioner of Taxation’s approach of taxing capital gains derived by an Australian–resident trust from assets located abroad, which have no connection with Australia, and where the gains are distributed to non-resident beneficiaries, as contrary to the intent of the legislation. To resolve the situation, the article advocates further case law to give guidance on the availability of relief from capital gains tax for foreign beneficiaries of Australian trusts.

Viewing the proposed South African Business Rescuie Provisions from an Australian Perspective

This article makes some comparisons between the Australian corporate rescue provisions and those proposed to be adopted in South Africa in the Companies Bill 2007. By so doing it may assist in the debate in South Africa over how the legislation is framed as the experience in Australia may be useful as an indicator of issues to be considered. One of the findings of the comparison is that the aims of the Australian legislation and that proposed in South Africa are almost identical. The article identifies a clear concern in the South African proposals with the position of employees which is not apparent in Australia. On the other hand there appears to be less concern in South Africa with the position of secured creditors than is evident in the Australian provisions. The article also notes that the South African proposals do not divide the procedure clearly into a decision-making stage and the period whilst the company is operating under the rescue plan. The Australian provisions provide for a clear break between a period where the creditors have yet to make a choice about the company’s future and the period once a plan (or deed of company arrangement) has been adopted. The article also finds that the South African model of rescue as proposed does cover many similar areas as identified in the Australian legislation. It therefore argues that there are sufficient similarities to suggest that much will be common in the experience if they are adopted into the legislation.

Indefinitely beyond Our Reach: The Case for Elevating Audio Description to the Importance of Captions on Australian Television

Indefinitely beyond Our Reach: The Case for Elevating Audio Description to the Importance of Captions on Australian Television

Financial Services and Consumer Protection

In 2010, Australia introduced the Australian Consumer Law by its Trade Practices Amendment (Australian Consumer Law) Act (No. 2). The standard of consumer protection in the provision of financial services is considered in relation to this new legislation and also the further Australian federal legislation: the Australian Securities and Investment Commission Act and the Corporations Act. It is then compared with the consumer protection standards of the common law. The new standards are further tested, firstly, against a new 'product' advertised by the Bendigo Bank in 2010, called the Homesafe Debt Free Equity Release, and secondly, against reform proposals which would prohibit the receipt of commissions by financial service providers. The new Bendigo Bank 'product' raises new implications for the finance industry and for consumer protection. The question is posed: is the ultimate consumer protection in the finance industry a duty of care, owed by the profession of financial services providers, to produce optimum wealth for Australians through a sound and reliable financial system for the consumer?

At-sea dumping of dredge spoil: an overview of the Australian policy and legislative framework

ABSTRACTThe increase in port development along the Queensland coast, and the associated dredging activity, has led to increased environmental concerns for the health of the Great Barrier Reef (GBR). While such impacts are of particular immediate concern for the GBR region, the issues surrounding dredging and dumping of dredge spoil are common to many other coastal regions in Australia and elsewhere. In this article, we review the current Australian policy and legislation affecting the dumping at sea of dredge spoil and the incentives this creates in terms of minimising damage. We find that the current complex framework may not necessarily provide appropriate incentives to minimise damage once approval has been obtained, although more recent policy interventions may help encourage innovation in more environmentally friendly actions. We also review the potential for other incentive-based management systems to limit environmental damage from dredging, drawing on the experiences in fisheries and marine biodiversity conservation.

A Critical Analysis of Tax Avoidance Schemes in Australia

Taxation, as defined for the purposes of this paper, is - the compulsory acquisition of goods and services, usually in the form of cash, by a government, from its people, for no return. It differs primarily from a gift in that it is taken by way of compulsion rather than being given voluntarily. There is an expectation on the behalf of taxpayers that the government will provide security and social order as well as social, infrastructure and welfare services such as education, health and amenities. Governments, faced by the eternal economic problem of boundless wants and limited resources often fail to deliver to the satisfaction of all. By its very nature therefore, a natural human aversion is created to the payment of taxes. In modern democracies, which rely on the goodwill of the populace to retain office, the matter of government revenue is a heavily debated political issue. The emotional nature of the social issue often far outweighs the logical economic issue of government responsibility for the fair and equitable distribution of wants and needs of society. In modern capitalist society there remains a need for government intervention in the economy to ensure the populace have a fair distribution of wealth and that the economy is serviced by the infrastructure essential to maintain and service the needs of industry and commerce to conduct industry and professions. Since the times of the Punic Wars when the site of Hannibal’s camp was auctioned in Rome, confidence tricksters have created fanciful schemes to encourage the unwary or the naive into giving them large sums of money or goods for worthless or non-existent goods or services. No scheme works with greater efficiency than tax avoidance. Entrepreneurs and confidence tricksters have exploited taxpayer’s natural aversion to paying income tax to promote schemes to divert monies from taxation into projects which substitute payments from taxation revenue to their own projects. Australian commercial ventures and taxation legislation are influenced by the nation’s position as a sophisticated Organisation for Economic Co-operation and Development (‘OECD’) nation centred among the developing and third world nations of South East Asia and the South Pacific. Schemes range from genuine attempts to promote and provide incentive to introduce innovations to commerce and industry which are encouraged by the government through taxation incentives such as Part 10BA of the Income Tax Assessment Act 1936 (Cth) and afforestation project incentives, to outright frauds such as the sale of contracts and investments which are nominal or totally non-existent. This paper examines the impact of tax incentives in the encouragement of tax avoidance and the international responses to Australia’s sophisticated OECD taxation environment by it’s near neighbours. South Pacific Nations such as Vanuatu and the Cook Islands openly promote of their ‘tax haven’ status and encourage Australians to use their blatantly open tax avoidance legislation to bolster their own flagging economies at the expense of Australian taxation revenue. Anti-Tax Avoidance legislation such as Part IVA of the ITAA is proving ineffective as the government finds itself losing outright control in the political arena. Reliance on coalitions and the support of minority parties in Parliament has resulted in a series of legislative compromises which is placing Australian taxation systems in real jeopardy. Poor government decisions over many generations have produced a social and political climate which has eroded taxpayer confidence in government and Australian politicians. The modern Australian taxpayer now feels he or she is not getting value for money and is more willing than ever to avoid taxation liabilities. Taxpayers, as demonstrated by the proliferation of public scandals in recent times, are all too willing to join taxation beneficial schemes and projects that are nothing more than fraudulent shams. This paper seeks an answer to effective and efficient taxation revenue systems while encouraging industry and controlling the ever-present trickster, who is all too able to prey on the unknowing, unwary or equally devious taxpayer. Australia must recognise not only its political and social position but also its geographical position in determining its taxation policy for the future.