Comparable Jurisdictions Research Articles

'Fair Trial Rights and Multilingualism in Africa: Perspectives from Comparable Jurisdictions' Catherine S. Namakula (2023)

Fair Trial Rights and Multilingualism in Africa: Perspectives from Comparable Jurisdictions Catherine S. Namakula (2023)Routledge, 172 pp

The Status of Strategic Environmental Assessment in Tanzania

Abstract Tanzania is one of the few African countries to formally adopt strategic environmental assessment (SEA) to integrate environmental factors into strategic actions and foster sustainable development. However, nearly two decades later, SEA development remains premature. This paper investigated the current state of the Tanzanian SEA system. More specifically, it examined the extent of practice and analyzed the SEA’s systems strengths, weaknesses, opportunities, and threats (SWOT s). Data were gathered through in-depth interviews, policy documents, literature review, and a workshop and analyzed thematically. The analysis reveals limited SEA use between 2004 and 2021. The SWOT analysis provides insights into the internal and external conditions driving SEA implementation in Tanzania, opening a window for SEA stakeholders to grasp the challenges and prospects. Based on the SWOT s identified, the author has proposed policy actions to advance SEA in Tanzania. The research contributes to the global SEA stocktaking efforts and ongoing refinement and continuous improvement of SEA systems in Tanzania and comparable jurisdictions.

Mental Health and Addiction Data Use Cases: Macro Perspectives in Ontario.

The opioid crisis in Ontario has led to a surge in preventable overdose deaths. Challenges in the mental health and addiction system, along with various contributing factors, have amplified this crisis. Underutilization of data exacerbates service gaps and hinders innovative solutions. Through stakeholder engagement, interrelated problems emerged, emphasizing the pervasive data underutilization. This research explores data usage in mental health and addictions, focusing on the opioid epidemic in Ontario and comparative jurisdictions. To improve service quality, Ontario should implement a comprehensive data management strategy. Two key recommendations include increased investment in exploring additional data use cases and evaluating policy initiatives using dynamic models throughout a patient's journey.

Pathways to Success, or Unfulfilled Dreams? An Examination of Pathway-Based Disparities in Graduation Rates

Research on pathway-based disparities in postsecondary education (PSE) has mounted in recent decades, indicating that nonlinear pathways may hamper students’ academic success. In Ontario, Canada, research on this topic remains largely inconclusive given the historically low quality of available data sources, with researchers commonly relying on small and unrepresentative samples, short observation windows, and a restricted range of academic and demographic controls. Through this study we reexamine pathway-based disparities in graduation rates using a custom administrative linkage that constitutes the best available evidence to study this topic in the province of Ontario. Our statistical analyses confirm the existence of a statistically significant relationship between the PSE pathways traveled by students and their odds of graduation, particularly among community college-to-university transfers. We conclude by considering the implications of these findings for both policymakers and future research in this space in Ontario and comparable jurisdictions.

Local government's roles in community health and wellbeing in Australia: Insights from Tasmania.

Local governments are well-placed to respond to communities' health and wellbeing needs. However, in the Australian state of Tasmania, the sector's roles in that respect are unclear. We interviewed 10 municipal personnel in Tasmania to understand their views on local governments' community health and wellbeing functions. Participants had an integrative understanding of community health and wellbeing and recognised that collective effort from all tiers of government, community members, and other place-based stakeholders would improve outcomes. They identified several roles local governments have to support and drive such improvements, including in relation to diverse place-specific determinants of health and wellbeing. Capacity and capability to fulfil what is needed varied, with rural and remote councils generally less able than urban counterparts to respond consistently or comprehensively to community members' complex needs. However, in the presence of clear expectations and parameters, and appropriate support from other tiers of government, participants were eager for their councils to do more to improve their communities' health and wellbeing, including via a mandate in legislation. Local governments have the potential to do more to improve health and wellbeing outcomes in Tasmania, and the greatest gains could be made by addressing spatial inequalities faced by the sector. That insight is extensible to other comparable jurisdictions. SO WHAT?: We argue the need both for a shared societal goal of equitable wellbeing supported by all tiers of government and for actions proportionate to the needs of council areas.

What impedes and enables flourishing among early career academics?

Early career academics face a rapidly changing higher education sector and too little is known about what helps them flourish in the profession. This paper responds to that gap by reporting research undertaken in a single or intrinsic case study of one Australian university. We invited participation from a full cohort of 1019 academics in one large College. Of those, 41 early career academics or ECAs and 45 more senior academics or MSAs engaged in a 50-question survey. Of those, 18 ECAs and 16 MSAs who had flagged interest then completed an in-depth interview. We learned about: ECAs’ work; what they and MSAs think impedes and enables that work; work-life balance; and experiences of mentoring and career development. We also asked for their perspectives on the future. We found remarkable agreement across the two cohorts that mirrors concerns expressed in a growing, internationally significant literature. Members of both cohorts appealed for strengthened organisational and sectoral commitments to caring career pathways and sought more certainty in challenging times. Our findings led us to conclude that academics have high hopes that universities and those in higher education policy settings can address work overload; enhance professional development across all duties; make leaner systems and processes; have more realistic expectations about research; and better value academics’ profound commitments to higher education. Those findings accord with other results reported in comparable jurisdictions around the world and add weight to an increasingly compelling case to recentre and refocus on people in university organisational cultures and practices.

The AGM as a site of contestation: evaluating the tactics of environmental shareholder activists

ABSTRACT The politics of climate change in Australia remains highly fraught, this is despite the country experiencing acute impacts of a changing climate including mega-fires, floods, and severe and prolonged drought. Government inaction has led to limited market signals encouraging producers or consumers to move away from carbon intensive energy production to clean energy. In the absence of regulation, Australian shareholder activists are engaging directly with company boards and executives to reform corporate behaviour. This engagement, environmental, social, and governance (ESG) shareholder activism, has proliferated since 2017, much later than in comparable jurisdictions. Activists have targeted the mining, oil and gas, and finance sectors, due to their contribution to the Australian economy and their direct impact on global emissions. This paper explores the reasons for, and the implications of, the growth in ESG shareholder activism in Australia. It argues that the emergence of this activism in Australia was delayed due to complexities in the country's corporations' law. Regulatory attempts at stymying ESG shareholder activism resulted in the emergence of a duopoly of actors, at the cost of broader investor and civil society engagement. It is concluded that the rise of ESG shareholder activism in Australia is linked to growing tension between societal expectations, regulation, and the behaviour of firms. And, that ESG activists have been successful in leveraging this tension. There is evidence that large corporates have responded to activist claims, rendering this form of activism a potentially effective method for addressing some of the most pressing issues facing society.

Relational contract theory, the relevance of actual performance in contractual interpretation and its application to employment contracts in the United Kingdom and Australia

This article articulates a theory of relational contract, as an alternative to traditional freedom of contract philosophy. The law has moved away from freedom of contract to some extent, and it can be criticised on the basis of its unrealistic assumptions and detachment from the typical reality of parties’ contracting. Relational contract theory is a possible suitable alternative theoretical framework. It may be useful in relation to contract interpretation. Specifically, it can be utilised to support a broader approach to contract interpretation, with the court focussing on the entirety of the parties’ relations, including the written terms and also subsequent performance. It enjoys some support in the United Kingdom and in other common law jurisdictions. It can support the view taken by two justices of the High Court of Australia in a recent contract interpretation decision involving employment contracts. The article favours the approach taken by these justices, rather than that of the majority, whose judgment reflects classic contract law sentiments at odds with the general direction of contract law in comparative jurisdictions.

Similarities in COVID-19 Mortality Between Canadian Provinces and American States Before Vaccines Were Available.

Canada and the USA are often compared for their markedly different approaches to health care despite cultural similarities and sharing the world's longest international boundary. The period between the onset of the COVID-19 pandemic in January 2020 and the availability of a vaccine in December 2020 offers an ideal opportunity to compare subnational Canadian and American pandemic mortality. Preventing the spread of COVID-19 was through compliance with health orders and best practices; treatment was only available to those admitted to hospitals and whose lives were at risk. Using publicly available data from the Johns Hopkins University 2019 Novel Coronavirus Visual Dashboard, we seek to uncover if there were any similarities in Canadian provinces' and American states' monthly COVID-19 mortality per 100,000 people, building on a broader scientific push towards understanding the successes and failures of different health systems in the pandemic. The similar province and state cumulative COVID-19 mortality rate trajectories identified in our analyses do not amount to intuitive comparative jurisdictions which suggests the importance of identifying localized pandemic responses.

Strategic environmental assessment for low-carbon development: A case study of oil and gas planning in Tanzania

Strategic environmental assessment (SEA) can help policy-makers navigate the transition to a low-carbon future. However, research into SEA's efficacy is scarce. We investigated how and to what extent low-carbon development (LCD) was considered in the case study SEA of Tanzania's oil and gas development plan. Using a comprehensive analysis framework we developed earlier, we performed documentary analysis on the draft SEA report. Findings reveal that LCD considerations were addressed partially and inconsistently. Notably, there was no alternatives options analysis, so opportunities for promoting LCD were foregone. Our findings suggest that SEA lags behind the known scientific evidence linking strategic energy planning to climate change mitigation. We recommend revising SEA institutional frameworks and developing the capacity of SEA actors to ensure that future SEAs are more strategic. Lessons highlighted from the Tanzanian case study can be applied to address the opportunities and challenges of LCD in other comparable jurisdictions.

The Promotion of Access to Justice through the Constitutional Development of the Doctrine of Forum Non Conveniens

South African jurisdictional principles governing cross-border litigation have seen minor development in recent years and as such, remained feudal and anachronistic. It is essential for South African courts to be equipped with the necessary jurisdictional powers to assume and exercise jurisdiction in disputes concerning its own citizens against foreign multinational corporations. This article aims to propose a way forward, centred around the constitutional reform of the South African doctrine of forum non conveniens, in a manner that advances sustainable and equitable legal development, while also simultaneously promoting the principle of transformative constitutionalism and the right of access to courts. To produce sustainable and viable solutions, a comparative analysis of both the principles of private international law and the proposed reform of the doctrine in comparable jurisdictions is undertaken. The effect of any associated international agreements and instruments applicable to these jurisdictions that may have an impact on or insight into the way forward is also examined. It is hoped that this article will result in a meaningful contribution to the discourse on the development of the jurisdictional principles of South African law, to achieve access to justice for all within Southern Africa and the African continent as a whole.

Mortality outcomes and inequities experienced by rural Māori in Aotearoa New Zealand

SummaryBackgroundPrevious research identified inequities in all-cause mortality between Māori and non-Māori populations. Unlike comparable jurisdictions, mortality rates in rural areas have not been shown to be higher than those in urban areas for either population. This paper uses contemporary mortality data to examine Māori and non-Māori mortality rates in rural and urban areas.MethodsA population-level observational study using deidentified routinely collected all-cause mortality, amenable mortality and census data. For each level of the Geographic Classification for Health (GCH), Māori and non-Māori age-sex standardised all-cause mortality and amenable mortality incident rates, Māori:Non-Māori standardised incident rate ratios and Māori rural:urban standardised incident rate ratios were calculated. Age and deprivation stratified rates and rate ratios were also calculated.FindingsCompared to non-Māori, Māori experience excess all-cause (SIRR 1.87 urban; 1.95 rural) and amenable mortality (SIRR 2.45 urban; 2.34 rural) and in all five levels of the GCH. Rural Māori experience greater all-cause (SIRR 1.07) and amenable (SIRR 1.13) mortality than their urban peers. Māori and non-Māori all-cause and amenable mortality rates increased as rurality increased.InterpretationThe excess Māori all-cause mortality across the rural: urban spectrum is consistent with existing literature documenting other Māori health inequities. A similar but more pronounced pattern of inequities is observed for amenable mortality that reflects ethnic differences in access to, and quality of, health care. The excess all-cause and amenable mortality experienced by rural Māori, compared to their urban counterparts, suggests that there are additional challenges associated with living rurally.FundingThis work was funded by the Health Research Council of New Zealand (HRC19/488).

Examining procedural fairness in anti-doping disputes: a comparative empirical analysis

While the principles of procedural fairness apply in anti-doping disputes pursuant to Article 8 of the Word Anti-Doping Code, 2021 (the Code), there has been limited research assessing whether due process requirements are applied consistently by national anti-doping tribunals. This paper investigates the extent to which the procedural requirements set out under the Code are followed in practice, with a focus on India, New Zealand and Canada, facilitating comparison between developed and developing jurisdictions. By providing an evidence-based examination of first instance anti-doping procedures, this study confirms existing theories on the overall lack of harmonization in anti-doping procedures. We undertook a frequency analysis on the full-text awards handed down by first instance anti-doping tribunals in the comparative jurisdictions and the findings highlight inconsistent application of timeliness requirements and access to legal representation. Critically, in India, disputes take significantly longer to be resolved than in Canada and New Zealand, while far fewer Indian athletes are represented by legal counsel. In all jurisdictions, athletes who were represented by counsel were more likely to see a reduction in their sanctions. The study provides empirical evidence of systemic issues associated with timeliness and access to justice in anti-doping tribunals across jurisdictions and reinforces the need to focus on capacity building and enforcement of procedural safeguards, especially in developing countries. Practical recommendations include strategies to better achieve compliance and harmonization in protecting the procedural rights of athletes, particularly those athletes affected by the current application of the Code where cultural and socio-economic barriers may exacerbate procedural issues.

Professor John Prebble's Guiding Hand in New Zealand's Advance (Binding) Rulings Regime

At first glance, one could be excused for concluding that New Zealand's advance (binding) rulings regime can be traced to a Government budget announcement in 1992. In reality, the early efforts of Professor John Prebble in the mid-1980s laid the groundwork that eventually resulted in a binding rulings regime commencing in 1995. John's contributions not only provided input from reviewing comparative jurisdictions, but also a draft code. Furthermore, post-regime, John was instrumental in endorsing the regime through his membership of the Committee of Experts on Tax Compliance (the Committee). Beyond this, further refinements to the regime (including more cost-efficient and accessible short process rulings) to a large degree reflect John's early observations. That is, businesses need certainty when making decisions that affect their tax obligations imposed by complex legislation and they should have access to a facility that can enhance that certainty.

Readability in the Canadian Tax System

This paper reports the results of a readability analysis of various parts of the Canadian tax system, with a particular focus on Canada’s income tax. The results indicate that Canada’s Income Tax Act is significantly more difficult to read than the taxation statutes of several comparable jurisdictions and more difficult to read than other Canadian legislation governing economic relationships. The guidance published by the Canada Revenue Agency for the use of tax professionals and the public appears more accessible. While it may be hoped that the statutory provisions that apply to low- and middle-income individuals would be more readable than the Income Tax Act as whole, the study found evidence to the contrary. Although the readability of the statute can only be one part of a program toward making the tax system more accessible, this paper argues that it is a project worth pursuing.

Judical Appointments in South Africa

Abstract South Africa is widely regarded as a model of a constitutional democracy on the African continent. This is partly because of the progressive Constitution adopted in 1996 and the fact that the country has consistently managed to conduct democratic, free and fair elections since the end of apartheid in the early 1990s. The sustainability of South Africa's constitutional democracy rests on the ability of the judiciary to ensure compliance with the constitution. The competence and credibility of the judiciary hinge on the appointment of judges who are able to reflect the diversity of the country, act without fear or favor, and develop a jurisprudence which creates and deepens constitutionalism. Judicial independence is a key component of the credibility of the judiciary. The inconsistent application of norms and standards when selecting and appointing judges tends to undermine the credibility of the appointments process. The process of judicial selection and appointment in South Africa begins with the Judicial Service Commission (JSC) advertising the existing judicial vacancies. After that, the JSC shortlists candidates who are then interviewed. Following these interviews, the JSC shortlists candidates for possible appointment by the President. A review of the transcripts of interviews conducted by the JSC from April 2014 to October 2019 shows patterns of discrepancies in the types of questions which candidates vying for the same judicial position are required to answer. This Article explains the process followed by the JSC, and then identifies and analyzes the discrepancies in the process employed by the JSC. The Article then demonstrates the negative impact which the discrepancies have had on both the quality of the judicial selection process and the quality of candidates shortlisted for appointment. Furthermore, this Article makes recommendations on how South Africa can draw from international norms and standards as well as good practices from comparative jurisdictions, to enhance consistency and fairness in its judicial selection and appointments processes.

Medicinal cannabis and driving: the intersection of health and road safety policy.

Recent shifting attitudes towards the medical use of cannabis has seen legal access pathways established in many jurisdictions in North America, Europe and Australasia. However, the positioning of cannabis as a legitimate medical product produces some tensions with other regulatory frameworks. A notable example of this is the so-called 'zero tolerance' drug driving legal frameworks, which criminalise the presence of THC (tetrahydrocannabinol) in a driver's bodily fluids irrespective of impairment. Here we undertake an analysis of this policy issue based on a case study of the introduction of medicinal cannabis in Australia. We examine the regulatory approaches used for managing road safety risks associated with potentially impairing prescription medicines and illicit drugs in Australian jurisdictions, as well as providing an overview of evidence relating to cannabis and road safety risk, unintended impacts of the 'zero-tolerance' approach on patients, and the regulation of medicinal cannabis and driving in comparable jurisdictions. Road safety risks associated with medicinal cannabis appear similar or lower than numerous other potentially impairing prescription medications. The application of presence-based offences to medicinal cannabis patients appears to derive from the historical status of cannabis as a prohibited drug with no legitimate medical application. This approach is resulting in patient harms including criminal sanctions when not impaired and using the drug as directed by their doctor, or the forfeiting of car use and related mobility. Others who need to drive are excluded from accessing a needed medication and associated therapeutic benefit. 'Medical exemptions' for medicinal cannabis in comparable jurisdictions and other drugs included in presence offences in Australia (e.g. methadone) demonstrate a feasible alternative approach. We conclude that in medical-only access models there is little evidence to justify the differential treatment of medicinal cannabis patients, compared with those taking other prescription medications with potentially impairing effects.

DISPUTE RESOLUTION IN THE SOUTH AFRICAN SOCIAL SECURITY SYSTEM: THE NEED FOR MORE APPROPRIATE APPROACHES

The right to social security in South Africa is adjudicated and enforced mainly by means of litigation. This article examines litigation as a mechanism for the resolution of social security disputes in South Africa and its impact on both the right to have access to court and to social security. It argues that court-based adjudication may not be the most appropriate means of adjudicating social security claims. This is particularly as South Africa is a country where social security beneficiaries have limited knowledge of the laws and procedures, coupled with a lack of publicly-provided legal assistance/representation for social security cases. Dispute resolution mainly through the courts may contribute to the limitation of their right to seek redress and by implication, their right to have access to social security. Finally, the article proposes the investigation of more appropriate dispute-resolution processes. This is due to the failure of court-based adjudication to ensure access to justice (and to social security); constitutional requirements arising from the protection of the rights of access to justice and to social security; the Constitution’s focus on protecting persons who are particularly vulnerable and desperate; the availability of other (more appropriate) dispute-resolution mechanisms; and the relatively successful implementation of these mechanisms in the resolution of social security disputes in comparative jurisdictions.

Revisiting the need to regulate foreign portfolio investor in the Indonesian stock market

This research aims to reintroduce the issue of foreign portfolio investment in Indonesia by way of presenting an analysis on the prevailing Indonesian laws and regulations, comparative analysis with well-established jurisdictions, as well as an evaluation on the need for regulating foreign portfolio investment in Indonesia. The methods used in this research combine normative and empirical methods where a review is conducted on the laws and regulations in Indonesia as well as in South Korea and India as comparative jurisdictions, in addition to an interview conducted with the Indonesian Stock Exchange. The research found that Indonesia does not have a separate, comprehensive set of regulations on foreign portfolio investments yet whereby inferences need to be made from the prevailing laws and regulations that are general in nature. After the comparative overview and analysis, there appears to be a need for separate regulation for foreign portfolio investments in Indonesia, either by way of enacting a completely new set of laws and regulations or alternatively, by way of creating implementing regulations to support the prevailing laws.

Judicial Review in Date Protection Cases in Bosnia and Herzegovina and Comparative Jurisdictions

The paper analyses the issue of judicial review in personal data protection proceedings. The subject of analyses is a procedural safeguard and other peculiarities of the administrative dispute and the standard of administrative law protection in the mentioned proceedings and the role of the Court of BiH. A comparative legal analysis of administrative-legal protection in the same disputes within Croatia and Slovenia is conducted, together with the relevant legal framework of the European Union. The comparative legal analysis aims to determine the extent to which the domestic model of administrative-legal protection and legal standards of judicial protection is compatible with the solutions adopted across Europe. It draws attention to problematic and controversial solutions to domestic legislation. In conclusion, the authors propose several regulatory solutions which would bring improvements to the current system of judicial protection in domestic law.