bluuebunny/crossref_metadata_2025 huggingface dataset:
Frustrating Performance: Contracts and Clinical Competence in the New NHS
Authors: Devenney James , Quick Oliver
Published: October 2011

Since 1997, New Labour has pursued an agenda of modernising the NHS, the central pillars of which have been a move from self-regulation to an interventionist and management driven approach, a focus on the performance of systems as well as individuals, and an attempt to repair damaged trust in healthcare professionals and regulation. After reviewing these reforms, this article will argue that whilst such reforms are a laudable attempt to increase the quality and safety of healthcare, they may also have some unintended and unwelcome side effects. In particular it will be argued that some interesting insights can be gleaned from the recent case of Gryf-Lowczowski v Hinchingbrooke Healthcare NHS Trust [2005] which demonstrates that financially stretched and risk adverse NHS trusts may seek to remove staff perceived as costly through, for example, an uncomfortable deployment of the doctrine of frustration. Not only is such a stance contrary to the rhetoric and spirit of the recent reform in the area, it also raises fundamental issues concerning the parameters of the doctrine of frustration.
Wrongful Conception: Policy, Inconsistency and the Conventional Award
Authors: Chico Victoria
Published: October 2011

The law on wrongful conception is rather confused. Currently, judges appear to decide claims on the basis of their own values, presenting their decision as one which the ordinary person would reach. This approach has allowed policy considerations to motivate decisions without a full discussion of the relevance or importance of that policy. Furthermore, this situation has resulted in inconsistency and uncertainty. This paper argues that one of the merits of the conventional award, adopted recently by a majority of the House of Lords in relation to wrongful conception claims, is that it has the ability to restore a judicial approach which fosters certainty and consistency and does not allow weak policy justifications to prevent the recovery of some compensation by genuine victims of medical negligence.
Foundation Trusts and Children's Participation: Some new opportunities?
Authors: Hagger Lynn
Published: October 2011

The call for children to be allowed to make decisions for themselves in recognition of their autonomous interests is not new in the healthcare setting. 1 The suggestion that they should be offered opportunities to make other-affecting decisions through involvement in health policy formulation is a relatively recent phenomenon, but one that can be supported by human rights arguments. It is accepted in other contexts that policies that affect children will be improved by involving a wide range of participants in general decision-making and there are many examples elsewhere of children being meaningfully engaged in decision-making, but there are few examples in the healthcare context. Where there is participation, it tends to be at a consultative rather than at a decision-making level in any real sense. Although NHS institutions may be willing to adopt child-participation initiatives, many lack confidence in their ability to do it properly. The establishment of the new NHS Foundation Trusts, requiring the adoption of governing bodies representing broad constituencies of patients, the public and other stakeholders, means that this involvement can be expedited. The learning curve is likely to be steep, but there is considerable excitement that efforts to grant young people a greater role in determining policy will reap considerable rewards for everyone. This paper argues that the current age restriction on Foundation Trust governors unnecessarily undermines children's human rights, is indefensible in law and weakens healthcare policies. There is a theoretical case for involvement and the governance arrangements for Foundation Trusts offer a model for such engagement.
From Principles to Practice: Implementing Genetic Database Governance
Authors: Gibbons Susan M C
Published: October 2011

This paper provides a short introduction to four articles published as a special collection under the title, ‘Implementing Genetic Database Governance’. It describes the background context and the need for genetic databases and biobanks to be governed appropriately and effectively. It notes the current lack of any coordinated governance frameworks, whether at the national, regional or international levels. It identifies certain core guiding principles and key issues relevant to governing genetic databases. It then draws out and reflects on five cross-cutting themes that emerge from the articles.
Certainty is Absurd: Meeting Information Security Requirements in Laws on Population Genetic Databases
Authors: Helgi Helgaso Hörđur , Gibbons Susan M C
Published: October 2011

This paper describes the problem of determining whether plans for a population genetic database in Iceland met statutory information security requirements. It discusses the approach taken by the relevant governmental authority, which involved employing technical standards to solve the problem. By examining the background to the project, and the main challenges it faced, the paper aims to draw out insights and lessons to inform the way in which future projects are designed and governed. It reflects critically on the results of trying to meet legal requirements for information security by using technical information security standards. Particular attention is given to the founding legislation of the project, and the court case that eventually found that legislation to be unconstitutional.
Implementing Public Health Policy and Practice within a Legal Framework: Constraints of Culture, Faith and Belief
Authors: Martin Robyn
Published: October 2011

This paper addresses the implications of cultural and religious beliefs and behaviours for the imposition of population-based health policies, and for law that delivers these policies. In particular, the paper addresses perceptions of health risk in recognition of the importance of risk assessment as a public health tool. In a public health emergency, to what extent should public health law impose public health interventions which might offend individual cultural or religious beliefs? The balance between public health and private right is examined to determine whether public health law can be framed to accommodate minority health beliefs and behaviours without detriment to the health of the population.
Health Care Choices, Faith and Belief in the Light of the Human Rights Act 1998: New Hope or Missed Opportunity?
Authors: McHale Jean V.
Published: October 2011

The passage of the Human Rights Act 1998 led to considerable speculation that it would be followed by a rise in litigation in the area of health care law as patients sought to assert claims in the English courts based upon the ECHR. This paper considers one area where the Human Rights Act might have been thought to have an impact namely where matters of faith and belief are concerned. It focuses in particular upon two aspects of the relationship between health care law, faith and belief in particular—that of the patient and of the health care professional. It explores what has happened since the Act came into force. The paper examines why eight years on the overall impact of the Act upon health care law in general and upon matters of faith and belief in particular has been so limited. The paper suggests that despite the initial hope generated by the passage of the legislation in some respects it has represented a missed opportunity. It suggests that there is a case for a new dialogue exploring the relationship between fundamental rights in relation to faith and belief and the development of health care law and health policy.
Legal Hybrids: On the Legal Status of Embryos and Foetuses
Authors: Janne Rothmar Herrmann
Published: October 2011

The article discusses the inadequacy of traditional theory on legal personhood in relation to embryos and foetuses. To challenge the somewhat binary view of legal personhood according to which the ‘born alive’ criterion is paramount the article demonstrates that the number of legal categories in which embryos and foetuses are placed are much more complex. These categories are identified using Danish legislation as an example and on that basis the article extracts and identifies the different parameters that play a part in the legal categorisation of the human conceptus.
Organ Transplantation in China and Beyond: Addressing the ‘Access Gap’
Authors: Harmon Shawn H.E. , Bai Jing , Wang Chunshui
Published: October 2011

While we may be on the verge of a very exciting sci-tech era, many millions of people will fail to benefit from advances, just as millions already fail to reap the benefits of recent and not-so-recent developments in medical practices. An example of such an under-experienced innovation is organ and tissue transplantation, a field in which demand far exceeds supply in virtually every country in the world. This is not because transplant techniques are particularly new, risky, or experimental. On the contrary, they are well understood and becoming routinised. This paper examines the social and cultural factors surrounding the recent implementation of a new legal regime governing transplantation in China. In particular, it considers how far this model can or could address a perennial problem associated with new and emerging (health) technologies, namely equitable access. Currently, very few people benefit from our understanding of, and growing capabilities in, organ and tissue transplantation (as well as other health advances). The paper then considers actions which ought to be taken to improve transplant medicine in China and beyond; actions which could improve public medicine dramatically.
Mechanisms of Health Care Accountability, Marketisation and the Elusive State
Authors: Palmer Ellie
Published: October 2011

In the United Kingdom during the past decade, individuals and groups have increasingly tested the extent to which NHS and private health providers can be held to account through principles of judicial review, or the Human Rights Act (HRA) for failure to provide access to publicly funded health care. Moreover a range of non judicial mechanisms have been developed, for monitoring standards and promoting transparency, participation and equality in the provision of NHS services. This article recognises that an important symbiosis has developed between administrative law courts and non-judicial mechanisms to enhance equality of opportunity and transparency in the distribution of health care resources. However, it also argues, that the unimpeded advance of corporate providers into NHS clinical services reflects a critical gap in the potential to hold government to account for failure to provide access to publicly funded health services, in accordance with commitments in Article 12 of the International Covenant on Economic Social and Cultural Rights (ICESCR).
Medical Malpractice and the Judicial Function in Comparative Perspective
Authors: Giesen Dieter
Published: October 2011

In the light of increasing misunderstanding between the medical and legal professions, this paper seeks, by means of comparative analysis to elucidate the central concerns of the law in regulating the provision of medical treatment and the doctor-patient relationship. The law in most jurisdictions seeks to ensure the full and consistent protection of the patient's rights. It will be seen that this goal requires that objective and judicially determined standards of care be imposed upon doctors. In relation to consent to medical treatment the primary value of individual autonomy implies that the informational needs of the particular patient must determine the legal standard of disclosure. In so far as English judges have privileged the medical profession, above all others, by unquestioningly ratifying its practices in relation to treatment and disclosure, they may be said to have abandoned their constitutionally mandated tasks of adjudication and the development of the law on an objective basis. This position is at odds with that in most other common law countries and is notably isolated within the context of the European Community.
Expert Witnesses in Child Sexual Abuse Cases
Authors: Keenan Caroline , Williams Catherine
Published: October 2011

This paper aims to look at the relationship between the courts and the witnesses, who, as experts in their particular discipline, give evidence to the court. It focuses particularly on civil cases relating to child sexual abuse. It asks what the court considers an expert to be and what is expected of an expert in court proceedings. It then goes on to look at the problems within that relationship and their possible solutions.

“If matters arise in our law which concern other sciences or faculties, we commonly apply for the aid of that science or faculty which it concerns. This is a commendable thing in our law. For thereby it appears that we do not dismiss all other sciences but our own, but we approve of them and encourage them as things worthy of commendation”. 1
Nurses Who Systematically Harm Their Patients
Authors: Forrest Alexander R.W.
Published: October 2011

Sequences of unexpected deaths associated with the deliberation actions of health care workers are rare, but not unknown. The carers involved are most commonly nurses, but this is by no means inevitable. The cases, when they come to light, inevitably attract a great deal of publicity and their investigation and the subsequent prosecution are usually fraught with difficulties.
The Role of the Human Fertilisation and Embryology Authority
Authors: Hagger Lynn
Published: October 2011

The recent publicity surrounding Diane Blood and the theoretical possibility of cloning human beings has highlighted yet again the important role of the Human Fertilisation and Embryology Authority (HFEA). It will be remembered that Mrs Blood sought to establish a right to be inseminated with her dead husband's sperm without his written consent. The HFEA, following the strict letter of the Human Fertilisation and Embryology Act 1990, withheld its permission for the procedure. Following a Court of Appeal decision to allow Mrs Blood access to treatment abroad the Department of Health commissioned an independent ethicist to address the relevant issues.

The use of such an expert which avoids any potential conflicts of interest, when the body has many members with the relevant expertise, is another example of how important the HFEA's integrity is viewed. It strives to act in an exemplary manner in the often hostile environment of uninformed public concern and against a backdrop of a statutory framework that is generally thought to suffer from a democratic deficit.

This article will provide an outline of the HFEA's background, structure and manner of operation in an attempt to demonstrate that it offers a model of regulation for the new reproductive technologies despite the constraints it faces.
Illegal Abortions and Women's Reproductive Health
Authors: Sherwani Azim A. Khan , Haq M. Minhajul
Published: October 2011

Deliberate termination of pregnancy is called induced abortion. It may be legal or illegal (if it violates any provision of “termination law”). Illegal and unsafe abortion is a hazard for women's reproductive health. In India, a tenth of maternal deaths are due to septic abortions. We do have termination law, which only barks but does not bite. There is a need to support the campaign for legal and safe abortion to protect the hundreds of thousands of women who are silenced by their early deaths due to unsafe illegal abortions.
The Relationship Between Physician and Patient under the Slovak Law
Authors: Drgonec Ján
Published: October 2011

The Slovak Republic was established as an independent country in 1993 as one of the successors of the Czech and Slovak Federal Republic. The fundamental provisions on medical law are set out within the Constitution of the Slovak Republic, others are to be found within a series of statutes adopted during the first days of independence as well as during the last days of the Czechoslovak Federation. The article discusses these provisions and highlights some of the issues arising from them.
Genetic Testing and Employee Protection
Authors: Gannon Philippa , Villiers Charlotte
Published: October 2011

Given advances in the science of genetics it is increasingly possible for individuals to acquire an increased understanding about their DNA. Employers may wish to access such information or may request that employees participate in genetic testing. An examination of the UK legislative framework to accommodate or to prevent such demands raises concern about the need to balance the employer's economic interests and the autonomy of the employee
The Israeli Patient's Rights Law: Evidence for Deprofessionalization?
Authors: Anson Ofra
Published: October 2011

In this paper, the Israeli Patient's Rights Law of 1996 is discussed within the framework of Haug's predicted process of deprofessionalizaton. It is argued that the law reflects global processes such as the diffusion of knowledge, consumerism, and values that emphasize human rights and democracy. By guaranteeing patients' access to medical information, by submitting medical decisions to extra-professional regulation, the law erodes professional power.
Article commentary: Case Commentary Anonymisation is Not Exoneration
Authors: Beyleveld Deryck , Histed Elise
Published: October 2011

This case commentary analyses a ruling that any use of information given in confidence for unconsented purposes is a breach of confidence capable of supporting a legal action (even if the information has previously been anonymised and aggregated).

The ruling is being appealed. It is argued that, while it is reasonable to delineate a narrower duty of confidentiality (not to disclose personal information, against breach of which anonymisation protects), this must be within a broad duty of confidence (not to use private information, which using anonymous information can still breach). Thus, the ruling is fundamentally correct in holding that anonymisation does not permit information obtained in confidence to be used for unconsented purposes.

This, however, implies that information obtained for a patient's treatment may not be used lawfully for medical research or NHS management purposes without consent, even if it is anonymised. Such a consequence is unacceptable as a matter of public policy. However, it is equally unacceptable to seek an exemption through the idea that patients give “implied consent” for medical research and NHS management purposes. It is also unacceptable to maintain that the public interest in medical research ( regardless of its aims) justifies unconsented use of information obtained in confidence, even if the information is anonymised. The way in which Section 33 of the Data Protection Act 1998 creates an exemption to its Second Data Protection Principle provides a ready-made model for a public interest based exemption for medical research and statistical NHS purposes.
Does Psychological Contract Breach Decrease Proactive Behaviors? The Moderating Effect of Emotion Regulation
Authors: Bal P. Matthijs , Chiaburu Dan S. , Diaz Ismael
Published: October 2011

In a set of two studies, based on employees from two countries, we examined how emotion regulation moderates the relationship between psychological contract breach and (a) feelings of violation and (b) proactive behaviors (knowledge sharing and taking charge). We found that cognitive change buffers the negative effect of breach on feelings of violation and knowledge sharing (Study 1, United States). We replicate this result using taking charge as an outcome. In addition, we demonstrate that using high levels of attentional deployment as an emotion regulation strategy accentuates the negative effect of both social and generative breach on employees’ taking charge (Study 2, the Netherlands). Based on our results, we call for additional research on how emotion regulation modifies the relationship between psychological contract breach and work outcomes.
The Batch Machine Scheduling of Continuous Caster with Flexible Jobs to Minimize Setup Costs
Authors: Yu D. H. , Huang M.
Published: October 2011

The batch machine scheduling of continuous caster with flexible jobs is first proposed based on its character. The difference with classical problem is first summarized. The preprocess of the problem based on rule is proposed, and then the mathematical model with minimizing setup costs is proposed. To improve the efficiency of local search, the particle swarm optimization (PSO) is introduced, and then the PSO combined with heuristic is embedded into the iterated local search (ILS) to solve the problem. The solution space is divided into many subspaces based on the charge information, and then the subspaces are integrated after local search. The maximum number of iteration is introduced as stopping condition. Then, the proposed hybrid algorithm and ILS are compared, and the changing of number of generation, learning factors, and the maximum number of iteration are also tested, respectively. Finally, the simulation results show that the proposed algorithm can solve the problem efficiently.
Extra-Role Time, Burnout, and Commitment
Authors: Brown Lori A. , Roloff Michael E.
Published: October 2011

This study examines the relationships of extra-role time (ERT) behavior with burnout and occupational commitment among teachers through the lens of conservation of resources (COR) theory. Results reveal that teachers who invest in more ERT are also more likely to experience burnout and decreased commitment to teaching than those who invest less. However, results also indicate that the ethical practice of the employer fulfilling the psychological contract (keeping promises) entered into with the teacher offsets this negative spiral with implications for both teacher well-being and workplace outcomes.
The Burden of Proving Discrimination
Authors: Ross Jenifer
Published: October 2011

Success rates in tribunal cases involving race discrimination are extremely low, lower even than in tribunal cases involving sex discrimination. The author has looked at a number of tribunal decisions in cases of race discrimination in Scotland as part of an attempt to identify any legal factors which might be producing that effect. In particular this article considers whether a shift in the burden of proof, compelling the drawing of an inference where a prima facie case is made and the employer's explanation fails to convince, would be effective rather than a continued reliance on the principles in King v The Great Britain-China Centre. It also identifies other issues which may be having a restrictive impact on proof in tribunals. These include aspects of the definition of race discrimination including its relationship with racism, the reliance on comparators and the search for motivation in respondents, as well as issues connected with the complex nature of race discrimination and its proof.
Age Discrimination: Law-Making Possibilities Explored
Authors: Meenan Helen
Published: October 2011

Is there a sound model for the United Kingdom (UK) to adopt should it decide to legislate against age discrimination in employment? In this article the writer attempts to answer this question first, by outlining existing UK sex and race discrimination laws and then progressing to an examination of long-standing American legislation and caselaw in this area. Finally, it explores the Irish Employment Equality Act, 1998, a composite and comprehensive act which prohibits discrimination in employment based on ‘age’ and eight other grounds. The strengths and weaknesses of each of these laws are examined in turn and measured against each other. The final analysis would suggest that each of these models can usefully inform any future law-making process to a greater or lesser degree and that good practice and legislation can co-exist in harmony. Moreover, the present lack of legislation in the UK against age discrimination in any area but especially employment, is remarkable when compared with British laws on sex and race discrimination and is ultimately unwise in the face of the real need for remedies and, the present and growing expansion in numbers of that portion of the population and the working population which British and European society call ‘old.’
Entrenching Equality by Countering Racism in South Africa: A Legislative Brief
Authors: February Judith , Abrahams Lynne
Published: October 2011

The Constitutional prohibition on unfair discrimination seeks to place equality and the preservation of fundamental human dignity at the heart of South Africa's nascent democracy. The Constitutional ideal is that all South Africans are regarded as equal and deserving of respect. More than that, however, the Constitution also allows for measures to redress the inequalities which resulted from the previous system of racial oppression.

By becoming a signatory to the International Convention on the Elimination of all Forms of Racial Discrimination on 10 December 1998 South Africa took upon ‘itself certain obligations, namely, to promote equality and prohibit unfair discrimination. South Africa has shown itself to be committed to reconciling its racially diverse population, although, predictably perhaps, the attempts at nation-building over the past seven years have not been without difficulty.

This brief attempts to examine the current legislation that exists to combat racism in South Africa; The Constitution, the Employment Equity Act, the Promotion of Equality and Prevention of Discrimination Act and ancillary legislation such as the Labour Relations Act. It will ask whether there are any obstacles to the implementation of such legislation. Lastly it will examine the body of law which the judiciary has developed on equality and racial equality in particular.
Legal Protection against Discrimination based on Racial and Ethnic Origin Under European Union Law — Necessary but not Sufficient?
Authors: McInerney Siobhan
Published: October 2011

Inter-related developments at three distinct levels of European Union law relevan to protection against race discrimination are the focus of this article. First, the article considers Article 13 E.C. enacted by the Treaty of Amsterdam, and the enabling model it embodies. This model is critiqued and contrasted with other potential forms of equality provision, by drawing on international law models. Next, the article analyses the Council Directive on Equal Treatment between persons irrespective of racial or ethnic origin (EC 43/20(0) from a number of substantive and formal legal perspectives. Finally, the article discusses the Charter of Fundamental Rights of the E.U. and the import of its equality provision, Article 21. A number of themes recur in this piece: among them, the limitations of the current equality model with respect third country nationals and nationality discrimination which amounts to de facto race discrimination; the inadequacy of the current equality model to provide a consistent level of protection for all of the heads of discrimination enumerated in Article 13; and the absence of a general principle of equality which clearly binds Member States, E.U. citizens and the E.U. itself.
Structure and Substance: Developing a Practical and Effective Prohibition on Discrimination under the European Convention on Human Rights
Authors: Small Joan
Published: October 2011

Article 14 of the European Convention on Human Rights has not had any real measure of success. This may be explained in part by its lack of free-standing status and in part by the unwillingness of Convention bodies to give it full effect. All too common to European human rights jurisprudence is the Court's exercise of discretion to refrain from ruling on the discrimination claim when another substantive article has been breached. Common too is the failure to apply rigorously standards of interpretation which have rendered the article weak in terms of a substantive equality guarantee. Protocol 12 seeks to overcome these difficulties, by creating an equality guarantee with equal weight as other Convention rights. The Protocol is not likely to enter into force in the near future. In the meantime, the European Court of Human Rights appears to be making efforts to strengthen the Article 14 jurisprudence. First, the Court seems to be showing some increased willingness to deal with the discrimination claim. Second, the prohibited grounds have been extended, in terms that invite comment on the rationale for prohibited grounds. Third, a claim based on indirect discrimination has finally succeeded. Each of these disparate developments, taken together, signal attempts on the part of the Court to take Article 14 seriously. It is suggested that these attempts, while important, lack principled reasoning, and that domestic courts should take seriously the task of supplying principles on which the Court can rely for guidance.
The Power of Storytelling: a Quest for a Public Discourse on Sexual Harassment
Authors: Morgan Jenny
Published: October 2011

This article explores the possible reasons for the absence of a public discourse about sexual harassment in Australia, which can be contrasted with a relatively well-developed legal discourse. It also briefly compares the debate about sexual harassment in the United States and Australia that followed in the wake of controversial and very public sexual harassment cases in each country. It argues that the debate in the wake of the Clarence Hill-Anita Thomas hearings in the United States was much more productive than the debate in Australia after the publication of Helen Garner’s book, The First Stone. The discussion in Australia focused on whether the young women in the case had ‘over-reacted’ and whether there were generational differences in women’s reactions to sexual harassment. The more interesting (and I would argue, far more important) questions of what is sexual harassment is and what are its effects were ignored. This article goes on to explore one aspect of what sexual harassment is and does by examining what women actually do in response to sexual harassment through an analysis of some of the stories of targets of harassment as they appear in the law reports. In this way it tries to make some of the legal discourse about sexual harassment a part of the public discourse about the phenomenon.
Sexual Harassment in the Workplace: A United States Perspective
Authors: Kelly Joseph M. , Kadue David D. , Mignin Robert J.
Published: October 2011

Sexual harassment litigation has increased significantly within the United States. It is a cause of action that was created by the judiciary to enable an employee to work in an atmosphere free from a sexually hostile environment. Some parameters of U.S. sexual harassment law are still unclear, but the law now applies to men and women, and the burden of proof has gradually been eased.

Under judge-made law, an employer will always be liable when harassment culminates in a tangible employment detriment. The employer is also automatically liable when a supervisor creates a hostile environment, unless the employer can prove that it has taken reasonable steps to prevent or correct harassment and that the employee unreasonably failed to use the employer's anti-harassment procedures. Employers are also liable for harassment perpetrated by supervisors, co-workers and non-employees if the employer is negligent in failing to prevent or correct harassment. Employers are thus well advised to formulate and enforce an anti-harassment workplace policy that allows a complainant to have a thorough, impartial and prompt investigation of any allegation of harassment.

Complainants can elect to use federal-law and state-law remedies for sexual harassment/discrimination. The state law, unlike the federal, may allow unlimited tort-like damages. A complainant may also allege common law causes of action such as infliction of emotional distress.
Sexual Harassment: The South African Perspective
Authors: Govender Sandra
Published: October 2011

Sexual harassment is not a new phenomenon in South Africa but until recently nothing significant was done to address it. The problem is currently being addressed through legislation aimed at prevention and eradication.

Sexual harassment in the employment environment is an area of great concern. With the advent of new legislation a positive duty has been placed on employers to take steps to combat the problem. Cases have already been brought before the South African courts in terms of the new legislation and the courts have shown no hesitation in implementing the law. Recent decisions have spelt victory for victims of sexual harassment whilst sending out a clear message to perpetrators and employers. The approach adopted by the courts is a laudable one.

The scene has been set in South Africa for the eradication of sexual harassment. The last step is the creation of a culture of non-victimisation. Employers have a crucial role to play as far as their employees are concerned. New legislation does address this issue but awareness is necessary to enable individuals to exercise their rights without fear of victimisation. This is of paramount importance if the various pieces of legislation are to achieve their objectives.
Disability Discrimination and Immigration in Australia
Authors: Waldeck Elizabeth , Guthrie Robert
Published: October 2011

In order for an application for migration to Australia to be successful, potential migrants must meet various criteria, including specific requirements relating to health. These health requirements may create a barrier to migration to Australia for those who suffer from disability or disease. The Disability Discrimination Act 1992 (Cth) makes it unlawful to discriminate against a person based on disability, including disease. Significantly, the Disability Discrimination Act 1992 (Cth) does not apply to the Migration Act 1958 (Cth). Therefore discrimination on the grounds of disability in the administration of the Migration Act 1958 (Cth) is lawful. As a consequence of the Migration Act 1958 (Cth) being exempted from the operation of the Disability Discrimination Act 1992 (Cth), many migration applications have been lawfully refused due to the disability of the applicant or a member of the applicant's family. Recent cases have tested the validity of the opinions of the Commonwealth Medical Officers who are required to provide the necessary medical opinion upon which the migration application is determined. The decisions of the Federal Court in Robinson and Ramlu, which are discussed below, give new hope to future migration applicants. Both cases were decided in favour of the applicant, holding that the medical opinions provided were invalid under the relevant migration regulations because the Commonwealth Medical Officer had assessed the applicant's disability based upon a hypothetical generic person with the disease or condition of the applicant rather than having regard to the particular circumstances of the applicant. These cases send a clear signal to Commonwealth Medical Officers that they must now provide opinions based upon a case by case analysis, having regard to the actual nature and extent of the applicant's condition, rather than an assessment based on the generic person with the disease or condition. This paper examines these decisions in detail against the background of Australian immigration policy and its effects on people with disabilities.
Sexual Orientation Discrimination in the European Union: The Framework Directive and the Continuing Influence of the European Parliament
Authors: Walters Mark
Published: October 2011

This article examines the effectiveness of sexual orientation discrimination laws prescribed by the European Union. In particular, the article critiques Article 13 of the Treaty Establishing the European Community, and the Framework Directive which was established under the powers conferred by it. It is argued that the Framework Directive is too restrictive in its scope, in terms of the areas of life it covers (i.e. employment only), and that the exceptions to its provisions are unjustly broad. Analysis is also made of recent case law from both the European Court of Justice and the European Court of Human Rights in an attempt to demonstrate the progressive but limited nature of this area of law. As a main theme, the article examines the important role that the European Parliament has had, and continues to have, on the evolution of sexual orientation discrimination law and more broadly, gay and lesbian rights within the European Union.
The Use of Legal Remedies in Australia for Pursuing Allegations of Genetic Discrimination: Findings of an Empirical Study
Authors: Otlowski Margaret , Taylor Sandra , Barlowstewart Kristine , Stranger Mark , Treloar Susan
Published: October 2011

Differential treatment on the basis of genetic status (genetic discrimination), has become an issue of international concern. The Genetic Discrimination Project (GDP) is an Australia-wide study which has empirically examined the nonmedical/health advantages and disadvantages for individuals who have gained specific information about their genetic status (typically through genetic testing). A major component of this project has been the Legal System Study which investigated and documented all cases involving allegations of genetic discrimination coming before anti-discrimination tribunals and other relevant bodies in Australia. Another major component of the project, the Consumer Study, investigated allegations of genetic discrimination from consumers of genetic tests. While the study identified a relatively small number of cases where allegations of genetic discrimination have been pursued under Australian anti-discrimination legislation, a key finding was the notable lack of uptake of legal remedies by those who may have experienced such discrimination. This paper explores possible factors contributing to this lack of uptake and makes recommendations to facilitate access to legal remedies by those who may have been subject to unlawful genetic discrimination.
Discriminating Material? Legal Liability of Employers for Job Advertisements
Authors: Middlemiss Sam
Published: October 2011

It is increasingly being recognised that an impressive and relevant presentation of job advertisements, combined with their strategic placing in an appropriate medium is key to a successful recruitment campaign. With increasing competition for certain jobs in this country this is vital although there are inherent dangers for an employer who, without considering the risks, simply asks for what he wants in terms of the skills attributes and characteristics of an applicant. The employer could face serious legal consequences where he wrongly discriminates against people not meeting his requirements or the content of the advert does not reflect the reality of the situation in the workplace. This could take the form of a claim under the equality legislation or a common law action under the law of contract or tort.
Statutory Intervention into Flexible Working Hours: The Flexible Friend or Foe?
Authors: Downie Margaret
Published: October 2011

This article will consider the inequality between men and women in the UK with regard to their entitlement to flexible working rights. This will be done by comparing the extent and effectiveness of rights to flexible working afforded under part VII of the Employment Rights Act 1996 (as amended) with those formerly available under the Sex Discrimination Act 1975 (as amended) and now the Equality Act 2010. The available case law will be examined to determine whether the definition of indirect discrimination in equality law actually results in inequality between the sexes in this respect and reaffirms the stereotypical portrayal of women as primary carers making it more difficult for employees of both sexes to achieve a position of real equality of choice.
Somersett's Case, The Constitution and Common Law Rights: A Re-Appraisal
Authors: Juss Satvinder S.
Published: October 2011

This article sets out to show that the popular view of the slave case of James Somersett as epitomising the common law's tenderness for individual liberty is mistaken, and through discussion of that case, this article seeks to shed light on the efficacy of the common law as a vehicle for the protection of pluralist individual rights in the modern world. The integrity of the common law is questioned when it gives primacy to economic rights. In this context, there is a discussion of the infamous Yorke and Talbot Opinion. The use of human rights instruments to redress the shortcomings of private-right based law is advocated.
Research Report: A Profile of Racial Vilification Complaints Lodged with the new South Wales Anti-Discrimination Board
Authors: McNamara Luke
Published: October 2011

In 1989 New South Wales became the first State in Australia to legislate against racial vilification. The introduction of this legislation, and discussion of similar provisions in other jurisdictions, rekindled debates about the legitimacy of legal limits on hate speech. However, little is known about the practical operation of antivilification laws. This report presents the results of a survey of more than 160 racial vilification complaints handled by the New South Wales Anti-Discrimination Board from 1993 to 1995. The profile of the legislation in practice presented here provides a valuable empirical foundation for critical assessment of anti-vilification provisions and of the conciliation based procedure which is currently employed in handling complaints.
Criminal Justice for Victims of Domestic Violence
Authors: Lünnemann Katinka
Published: October 2011

In the Netherlands there is no criminal act of ‘domestic violence’. Although domestic violence is covered by general provisions of criminal law, the specific aspects of domestic violence of women are often not recognized by the police, the prosecutor and judges. In this article the problems of protection by criminal law are considered, and suggestions are made to enhance the protection by criminal law.
Discrimination and Freedom of Contract
Authors: Besson Samantha A.
Published: October 2011

The aim of this article is to clarify the apparent antithesis between the fundamental private autonomy of the contractual parties and the right of a party not to be discriminated against and found anti-discrimination law’s legitimacy in philosophy and economics. The purpose of reviving this controversy derives from a recent attack from some of the scholars of the ‘law and economics’ movement on anti-discrimination law, and from Richard Epstein’s Forbidden Grounds in particular. Within the efficiency rationale discourse it is in reality the freedom of contract principle which is reassessed as being fundamentally violated by anti-discrimination law.

The study tackles the problem by, first, analyzing potential philosophical foundations, denying any plausibility to Epstein’s derived libertarianism and supporting Gardner’s autonomy-based perfectionism, and, secondly, presenting efficiency-based foundations of anti-discrimination law, leading to the conclusion that anti-discrimination law may lead to efficient results by speeding-up the market process. The final aim of the study is to reconcile anti-discrimination policy and freedom of contract within both a market- and a social-sensitive contract theory, such as the ‘Social Market’ Theory that conceives of freedom of contract as autonomy-based and thus conditioned upon the respect of the prohibition of discrimination.
‘When You’re Here, You’re Family’: Culinary Tourism and the Olive Garden Restaurant
Authors: Albrecht Michael Mario
Published: October 2011

In this paper, I address the practice of domestic culinary tourism by focusing on a seemingly banal suburban chain restaurant featuring ethnic cuisine. I examine the ways in which the restaurant positions itself as offering ‘real’ Italian food and a ‘real’ Italian experience, and analyze a broad array of cultural texts that chastise the Olive Garden for this assertion and condemn the chain and its patrons. Ultimately, I demonstrate that many of those things that position the restaurant as an object of derision are part of the appeal of the chain, resulting in a complex set of meanings that resides in the Olive Garden as a site of cultural interest.
Seeking the green basilisk lizard: Acquiring digital literacy practices in the home
Authors: Davidson Christina
Published: October 2011

Research confirms that young children engage in digital literacy practices in the home. While there is an emerging body of work that documents the diversity of these practices, there is little research that examines their acquisition in situ. This article uses conversation analysis to describe and explicate the social accomplishment of a number of activities that led to and constituted a young child’s Google search to find information about a lizard. Discussion of the child’s activities considers the local and situated use of technology, including how the child and adult jointly obtained the information needed by the child to read and write texts related to the search. The article establishes ways that social interaction contributes to young children’s acquisition and use of digital literacy practices, including when learning about print and about techology itself.
Children's language ideologies in a first-grade dual-language class
Authors: Morren López Minda
Published: October 2011

This study explores the language ideologies of young children in a Spanish/English dual language programme in the USA. Recent studies of language ideologies in education have centred primarily on adults or older students, but this study focuses on young children from varied language backgrounds. By analysing discussions centred on children's literature, I report first-grade students’ beliefs about language in their responses to themes in the literature and closely examine two students’ discourse over time. These young participants often expressed competing ideologies as they responded to the various contexts they were in and the roles they were expected to play. While students were becoming proficient in two languages, they were also creating their identities and beginning to understand issues of language and society and formulating ideologies. I highlight the importance of acknowledging young students’ ideologies and discussing issues of language, bilingualism and language use as schools become increasingly diverse.
‘They tell a story and there's meaning behind that story’: Indigenous knowledge and young indigenous children's literacy learning
Authors: Hare Jan
Published: October 2011

This research draws on the reflections from group discussions with indigenous families and interviews with early childhood educators and community stakeholders from five First Nations reserve communities in Canada whose young children participate in the national aboriginal Head Start On Reserve (AHSOR) programme. The purpose of the study was to examine the contributions of indigenous knowledge to young indigenous children's literacy learning. In the course of this examination what became clear is that there is a greater set of literacy activities in these families than is recognized by early learning settings. Further, there is a literacy orientation within their indigenous knowledge systems that, draws on oral tradition, land-based experiences and ceremonial practices that, when linked to the discourses of schooling and literacy, provide the basis for improving educational outcomes for indigenous children and families, whose relationship with schooling has been historically troubled.