Statutory Obligations Research Articles

Design and defects: Responsibilities and liabilities

Surveyors deal on a regular basis with defects. This paper offers a reminder of where liabilities and responsibilities lie, particularly in the context of design and fitness for purpose but also in respect of statutory obligations under the Defective Premises Act 1972.

The Land Acquisition (Just Terms Compensation) Amendment Act 2016 (NSW) - How will the Amendments Work?

The NSW Government has introduced requirements for authorities proposing to undertake compulsory acquisition procedures to make “genuine attempts to reach agreement” with owners of interests in land before proceeding to the formal stage of issuing a Proposed Acquisition Notice. The legislation does not expressly state the consequences for an authority if it fails to make those genuine attempts. This paper considers the nature of an obligation to make “genuine attempts” and compares it with other statutory obligations to negotiate in good faith. It also considers whether the obligation to negotiate is a precondition to a valid acquisition, and other reforms included in the amendments.

Does California's CO2 price affect wholesale electricity prices in the Western U.S.A.?

Using a sample of daily market data, we quantify the effect of California's CO2 cap-and-trade program on the wholesale electricity prices of four interconnected market hubs in the Western U.S.A.: North of Path 15 (NP15) and South of Path 15 (SP15) in California, Mid-Columbia (Mid-C) in the Pacific Northwest, and Palo Verde (PV) in the Desert Southwest. A $1/metric ton increase in California's CO2 price is estimated to have increased the electricity prices by $0.41/MWh (p-value < 0.0001) for NP15, $0.59/MWh (p-value < 0.0001) for SP15, $0.41/MWh (p-value = 0.0056) for Mid-C, and $0.15/MWh (p-value = 0.0925) for PV. These estimates reflect: (a) the NP15 and SP15 sellers’ pricing behavior of fully including the CO2 price in their intra-state transactions; (b) the Mid-C price's 100% pass-through of the CO2 price in the Pacific Northwest's hydro export to California; and (c) the statutory obligation of paying the CO2 emissions cost by California's buyers of the electricity imported from the Desert Southwest. The policy implication is that internalization of CO2's externality in the Western U.S.A. requires a cap-and-trade program with a regional scope that encompasses all four hubs, thereby remedying the California program's limited geographic coverage which introduces distortions in neighboring markets.

Development of an independent hydrology audit methodology to support flood risk assessment in the planning process in Scotland

AbstractThe recent flooding in the North–East of Scotland has highlighted issues around climate change due to significant changes in duration, severity and volume of precipitation events. The Planning (PA) and Flood Authorities (FA) often do not have the capacity or resources to review and check the accuracy and robustness of the SUD schemes nor the calculations submitted by developers. This study demonstrates the development and application of an Independent Hydrology Audit (IHA) service aimed at auditing and reviewing ‘in principle’ planning applications from the aspect of flooding risk to the wider community the development is located within. The output of this service is to establish a more accurate representation of surface water impact from developments through the use of adequate green/blue infrastructure, provide a greater assurance to the communities at risk of flooding, and help the PA and FA meet their statutory obligations at the initial stage of planning.

BIM EXECUTION PROCESS OF CONSTRUCTION COMPANIES FOR BUILDING PROJECTS

Building Information Modeling (BIM) has been an emerging concept in architecture, engineering and construction (AEC) industry with a vast amount of promising benefits to construction projects. Implementation of BIM, however, requires comprehensive research and strategic planning. Industry-wide and organizational implementation guidelines and standards have been published around the world either to encourage organizations to adopt BIM or to present the minimum requirements to be followed where BIM implementation is a statutory obligation. In contrast, governments or organizations in several countries such as Turkey have not mandated BIM implementation and provide no guidance. Organizations in these countries which plan to adopt BIM processes are forced to develop their own implementation plans. The purpose of this study is to provide guidance in BIM implementation for construction companies in countries where BIM implementation has not been mandated particularly during the construction phase of the building projects. 23 BIM standards and guidelines covering the BIM execution process have been reviewed. Topics that need to be addressed by BIM implementation plans have been identified and categorized under four headings. A case study of BIM implementation at a large construction company that focuses on conducting quantity takeoff and cost estimation is presented, and unique challenges of BIM implementation in Turkish AEC industry are discussed.

Political Economy of Agency Employment: Flexibility or Exploitation?

The proliferation of agency employment in Pakistan is a serious labour problem and a public policy concern because of the potentially negative implications for agency workers' basic statutory rights. Agency workers are normally given a vastly different, often negligible, package of benefits from their permanent counterparts. They are especially vulnerable to instant dismissal and are generally excluded from collective bargaining arrangements. Unions regard the use of agency employment as exploitative, and a threat to their jurisdiction and membership. This article reports on an in-depth study of “payrolling” agencies. Pay-rolling agencies are a particular form of employment intermediaries through which employers attempt to bypass statutory obligations concerning workers' benefit entitlements and trade union rights, simply by paying workers through an agency. A total of 97 interviews, undertaken in six case studies across three industrial sectors with employees, employers, agency and union officials, and industry specialists revealed sufficient evidence on the use of pay-rolling agencies. The results confirmed the anecdotal evidence that some employment agencies are not truly genuine. The evidence suggested that there is a growing trend for agencies to be simply a sham arrangement, refuting the notion that temporary agency work has only been a natural and inevitable response to changes in the economy.

P116 Our new statutory obligations under the amended female genital mutilation act 2003 (sections 70–75 of the serious crime act 2015); one year on

IntroductionThe UN estimates 200 million women and girls worldwide are living with the effects of female genital mutilation (FGM), with 137,000 victims in England and Wales. Following the introduction of the amended FGM Act 2003 in October 2015, I reported that 1385 new cases were identified in England in the quarter before the new law and 1316 in the quarter following. In keeping with my aim, I have reviewed the data from the year following the new legislation, to determine its effect.MethodsUsing hscic and NHS digital data, combined with reports from UN and WHO, I analysed the 12 months following the legislation change. I also searched Ministry of Justice reports to study how many FGM protection orders (FGMPOs) and convictions have been made.ResultsData revealed similar numbers of new cases of FGM reported in each 3-month period since October 2015 (1242, 1293 and 1204 respectively). However, there are large gaps in the data. Since July 2015, there have been 97 applications for FGMPOs and 79 orders. There have still been no FGM related convictions in the UK, despite 32 cases being reported to have happened in the UK between January and September 2016.DiscussionThe results are disappointing and we are yet to see substantial change. £4million has been spent and 22,000 FGM training sessions have been delivered but we are still failing to report properly and prosecute offenders. To achieve 2015’s Sustainable Development Goals, the UK must play its part to help end FGM.

An Assessment of the Legality of Arms Sales to the Kingdom of Saudi Arabia in the Context of the Conflict in Yemen

This White Paper analyzes U.S. statutory obligations regarding arms sales and military assistance to Saudi Arabia in the context of the ongoing conflict in Yemen. The United States has provided significant support for Saudi Arabia, including over $115 billion in arms sales over the last eight years. During the course of hostilities conducted by a Saudi-led coalition in Yemen over the last two years, the United States has provided billions of dollars of equipment for use in Yemen and provided in-flight re-fueling to support bombing operations. In light of credible allegations of widespread violations of international humanitarian law by all parties to the conflict resulting in significant civilian casualties over the last two years, concerns have been raised about the legality of further arms sales under U.S. law. In the face of persistent reports of wrongdoing, Saudi Arabia has failed to rebut allegations or provide detailed evidence of compliance with binding obligations arising from international humanitarian law. In the context of multiple credible reports of recurring and highly questionable strikes, even after Saudi units received training and equipment to reduce civilian casualties, the United States cannot continue to rely on Saudi assurances that it will comply with international law and agreements concerning the use of U.S.-origin equipment. Under these circumstances, further sales under both the Arms Export Control Act and the Foreign Assistance Act are prohibited until the Kingdom of Saudi Arabia takes effective measures to ensure compliance with international law and the President submits relevant certifications to the Congress. Congress should utilize the expedited review procedures of both Acts to ensure compliance with the law.

Dam safety, risk assessment and governance: an Australian perspective

This paper sets out an Australian perspective on dam safety management. Dam safety is regulated by the six states that, along with the two territories, are self-governing, sharing powers with the federal government. The dam safety record of incidents and failures is similar to other developed countries, and two failures have resulted in loss of life. Where states do regulate dam safety, the current emphasis is on risk management, as it is for other hazardous industries, and risk assessment is permitted. Risk assessment has been used extensively to manage the safety of large dams in both regulated and unregulated jurisdictions and there is now more than 20 years of practice in portfolio dam safety management. Dam owners have found that risk assessment supports the need for due diligence for public safety and facilitates rational decision making between business investment priorities. The process of working towards risks that are as low as reasonably practicable satisfies both statutory and common law obligations.

Informed Consent and Performance Data: Clinician Experience as a Material Risk

In Australia, as in other common law jurisdictions, the doctrine of informed consent has developed from the principle that individuals have a right to decide for themselves whether or not to undergo medical treatments. The personal autonomy of the patient is facilitated by the provision of information by their medical practitioner. While a description in broad terms of the procedure to be performed is sufficient to establish valid consent – and to avoid the tort of trespass to the person – more information may be required to satisfy the doctor’s duty to warn of a material risk, and to negate a claim of negligence. The scope and content of the duty to warn has a degree of flexibility, in that practitioners are expected to be responsive to the needs of individual patients and that this duty is subject to therapeutic privilege. The focus of most informed consent discussions understandably centres on the risks of the procedure to be undertaken, and possible alternative treatment options. In recent years, however, debate has arisen both internationally and in Australia over whether the duty to warn might also encompass disclosure of risks relating to the doctor undertaking the procedure, including information about their skill or experience. This debate is increasingly pressing as data pertaining to the skill and experience of individual doctors becomes more routinely collected and more widely available. To date, the majority of debate over the role of performance data in health care has related to surgeons and surgical outcomes. While there is no reason that other specialties could not be monitored and assessed using similar data analysis methods, this article will focus on surgeons as the main example as this field currently has the most developed data collection and usage. Developments in the legal obligations of surgeons are, however, likely to have consequences for the obligations and practice of other health practitioners in the future. As the collection, analysis and dissemination of surgical performance data becomes increasingly commonplace, it is worth determining whether, and under what circumstances, a surgeon has a duty to disclose this information to his or her patients. This article will first establish the extent to which surgical skill has been an issue in failure to warn complaints in the past, and the potential for it to be a significant future issue. The duty to warn will then be assessed with reference to statutory obligations and relevant case law. Finally, policy considerations arising from a duty to disclose performance data will be explored to identify possible future limits.

Public-private partnership as an alternative source of financing of public tasks

Aim: The paper touches upon the issue of public-private partnership (PPP) as an alternative form of realising public tasks by the local authorities (Polish short: JST) in Poland. Motivation: Since 2009, the cooperation between the public and private sector has been used to an increasingly large extent in various areas of economy. The first part of the paper presents the legislation concerning the public-private partnership in Poland for the years 2009–2014 that regulates, defines and details the cooperation between both sectors. In order to present the scale of using the private-public partnership framework by local authorities in Poland, the last part of the text analyses reports originating from the Ministry of Economy, Polish Agency for Enterprise Development and the Public-Private Partnership Institute concerning the public-private partnership industry and concessions in Poland for the years 2009–2014. Results: Analysis of data and its interpretation were used in order to set out the perspectives for the development of the private-public partnership industry in Poland for future years. The statutory obligation to realise local authorities’ own tasks, combined with the limited amount of budget resources, forces the local authorities to look for alternative solutions. In the light of the analyses presented here, the public-private partnership framework may become a solution for the scarcity of financial resources for many communes, poviates and regions in Poland.

Can employers lawfully ‘opt out’ of their statutory obligations? A call for reform of fixed-term employment in Hong Kong

ABSTRACTThis article critically reviews one of the most common practices adopted by Hong Kong employers today — the use of fixed-term employment contracts — from a comparative and theoretical–practical perspective. This article begins with an examination of the landmark decision in Lui Lin Kam v Nice Creation Development Ltd, where the employer successfully avoided severance pay, by resorting to artificial work arrangements, and then analyses its adverse social implications. While Hong Kong court has generally been entrusted with the role of a ‘guardian of labour rights’, the Court of Appeal in the Lui case found it difficult to stretch its limits of adjudication to intervene the employer’s policy to stagger the work schedule of workers under successive fixed-term contracts of 18 months’ duration, due to the apparent defects of the current Employment Ordinance. This article calls for reform of the fixed-term employment, the regulation of which has remained frozen for many years, particularly in the light of the two long-standing ‘imbalances’ implicit in Hong Kong labour market: the imbalance of power in labour relations, as well as the imbalance between ‘flexibility’ and ‘security’ of employment. With reference to the existing labour policy on fixed-term contracts in other European and Asian countries, the author of this article proposes two main lines of reform, concerning primarily the maximum duration of fixed-term contracts and the imposition of a positive duty upon employers to provide objective reasons for concluding such contracts, in order to afford better protection to fixed-term workers in Hong Kong.

Health Practitioner Notification of Competence Concerns: Career Suicide v Patient Safety?

This article examines the discretionary notification of competence concerns by health practitioners, through the lens of patient safety. The discretion, provided for in the Health Practitioners Competence Assurance Act 2003, is discussed alongside ethical obligations, factors that may inhibit raising concerns about substandard practice, and the arguments for and against mandatory reporting of incompetent practice. It concludes that the absence of a statutory obligation to notify such concerns creates a risk that problems will go unreported and that patients may be exposed to harm. Comprehensive research into the source of notifications, and practitioners understanding of the threshold for raising concerns, is recommended. It is also suggested that legislative change to require mandatory reporting in certain circumstances may need to be reconsidered.

Equitable Fiduciaries, Business Organization Fiduciaries, and Cognition: Explaining the Divide in Fiduciary Obligation Law

Scholarship on fiduciary obligation law has long been divided into two camps: traditionalists and contractarians. Those two camps have largely been talking past each other, however, because each fails to appreciate that there are really two distinct, coherent bodies of fiduciary obligation law. There are traditional fiduciary relationships rooted in equity and modern, statutory and contractual fiduciary relationships. Much of the confusion in the case law can be attributed to judges attempting to apply assumptions developed for traditional, equitable fiduciary relationships to modern, statutory and contractual fiduciary relationships where those assumptions no longer belong.Scholars and judges should appreciate that there are two bodies of fiduciary obligation law and that they require different approaches. Rather than the top-down analysis that has typically been applied to traditional fiduciary obligations, judges should apply a bottom-up analysis to modern, statutory and contractual obligations. That is, judges should perform a data-driven analysis that closely examines the relative statutory and contractual language. This will better fit the needs of legislatures in providing for those fiduciary relationships and the needs of parties in entering into them. The modern, statutory and contractual form of fiduciary obligation is a rational response to a design problem stemming from changes in the law and in the economy.

Longitudinal research and early years policy development in the UK

Interest in early years issues such as early childhood education and care (ECEC) and early intervention has increased in recent decades internationally. Partly this reflects interest in facilitating the social and educational development of children, both for deprived children and the general population, and partly interest in increasing parental, particularly maternal, employment. Concern for such issues has led to substantial policy change in the UK in recent decades. For the general population, prior to 1998 there was no statutory obligation for the state to provide any early childhood services for children under the statutory school age of 5 years. However, there were provisions for ‘at risk’ children, as well as in some nursery education for 3- and 4-year olds, typically in more disadvantaged areas, but availability was haphazard around the country. Research evidence and social and political factors have resulted in radical change to the whole early years services system in the UK. The findings of two longitudinal research studies, the national evaluation of Sure Start and the effective provision of pre-school education projects were important factors in policy change and this paper discusses how the interplay of research and policy occurred. Initially changes were introduced by the Labour government, but more recent policy changes have been introduced by the Conservative government. The need for state involvement in early years services has become accepted by all political parties. There is substantially greater government investment in the early years, so that government-funded ECEC is now part of the infrastructure supporting family life for the whole population. This article discusses how research evidence has contributed to the substantial policy change in the last two decades.

Should quality of the liver transplant candidate evaluation be measured?

Should quality of the liver transplant candidate evaluation be measured?

Contested Discourses in Multidisciplinary Sexual Assault Response Teams (SARTs).

This qualitative study explored how law enforcement officers, forensic nurses, and rape crisis advocates who are members of coordinated service delivery models such as Sexual Assault Response Teams (SARTs) describe their process of engaging with one another and managing their differences in professional orientation, statutory obligations, and power. Using semi-structured interviews with 24 SART responders including rape crisis center advocates, law enforcement, and medical personnel, we examined the ways that SART members discursively construct one another's role in the team and how this process points to unresolved tensions that can manifest in conflict. The findings in this study indicate that interdisciplinary power was negotiated through discursive processes of establishing and questioning the relative authority of team members to dictate the work of the team, expertise in terms of knowledge and experience working in the field of rape response, and the credibility of one another as qualified experts who reliably act in victims' and society's best interests. Implications of these findings for understanding and preventing the emergence of conflict in SARTs are discussed.

The role of public communication in decision making for waste management infrastructure

Modern waste management provision seeks to meet challenging objectives and strategies while reflecting community aspirations and ensuring cost-effective compliance with statutory obligations. Its social acceptability, which affects both what systems (infrastructure) can be put in place and to what extent their implementation will be successful, is a multi-dimensional phenomenon, often not well understood. In light of the growing evidence that decisions to build new infrastructure are often contested by the public, there is a clear need to understand the role of scientific evidence in public perception, particularly as environmental infrastructure delivery is often objected to by the public on environmental grounds. In this paper the need for waste management infrastructure is reviewed, and the way its delivery in the UK has evolved is used as an example of the role of public perception in the planning and delivery of waste facilities. Findings demonstrate the vital role of public communication in waste management infrastructure delivery. Public perception must be taken into account early in the decision making process, with the public informed and engaged from the start. There is a pressing need for people not simply to accept but to understand and appreciate the need for infrastructure, the nature of infrastructure investments and development, the costs and the benefits involved, and the technological aspects. Scientific evidence and literacy have a critical role to play, facilitating public engagement in a process that empowers people, allowing them to define and handle challenges and influence decisions that will impact their lives. Problem ownership, and an increased probability of any solutions proposed being selected and implemented successfully are potential benefits of such approach.

Call of duty: an exploration of the factors influencing NHS professionals to report adult protection concerns

Purpose – The Adult Support and Protection (Scotland) Act 2007 places a duty on Councils to investigate the circumstances of adults who, because of a disability, health condition or illness are unable to safeguard themselves from harm. Public partner agencies, including the NHS have a statutory obligation to bring to the attention of the Council those individuals who may be at risk of harm. Health professionals cooperate with adult protection investigations and participate in the development of adult support and protection plans, yet do not appear to be initiating adult protection referrals with the Council. Low reporting by health has also been recognised as a national issue. The purpose of this paper is to explore what promotes and what prohibits the identification and reporting of situations of abuse within the Scottish Legislative Framework. Understanding the decision-making processes of prospective reporters would potentially allow the barriers to be reduced and the supports to be strengthened. Design/methodology/approach – The research strategy is based on a literature review, a web-based survey and semi-structured interviews with health professionals within community learning and community mental health teams. Findings – The findings point to a number of inter-related factors which impinge upon the professional’s confidence to initiate adult protection referrals. Workers must first recognise harm as conduct which needs to be reported and addressed. They need to be familiar with referral procedures and be assured that their concerns will be dealt with appropriately. Health professionals are more likely to report if they are based in an environment which supports honest and open discussion regarding harm, without over-concern about agency reputation or resources. Access to multi-disciplinary consultation and support, particularly in relation to more ambiguous protection situations, was viewed as fundamental to reporting. Originality/value – This small scale study adds to a developing bank of literature providing a Scottish perspective on protecting adults. It offers some insight into reporting decisions from the viewpoint of community health professionals.

Regulating Forced Arbitration in Consumer Financial Services: Re-Opening the Courthouse Doors to Victimized Consumers

Forced arbitration clauses have become almost unavoidable in contracts for financial services and products ranging form credit cards to private student loans. This report examines how the financial services industry uses these clauses to defeat consumers' rights and evade accountability for their wrongdoing.As the report explains, the forced arbitration process harms consumers by relegating them from the civil justice system to an inferior forum for vindicating their rights. In contrast to the courts, forced arbitration tends to be secretive, less independent of industry, more prone to erroneous and arbitrary rulings, more likely to discourage the pursuit of claims with procedural barriers, and more likely to provide inadequate relief for compensating victims of corporate wrongdoing.The report examines the 2016 proposal by the Consumer Financial Protection Bureau (CFPB) to limit the use of forced arbitration clauses in contracts for financial services and products, and finds that the proposal is consistent with the agency's statutory obligation to protect consumers. The report goes on to explain that the CFPB would better fulfill its statutory mandate by revising its proposal to include stronger protections for consumers.