CLINICAL LEGAL EDUCATION
AGING, DISADVANTAGE AND CONSUMER CREDIT ISSUES - INVOLVING STUDENTS IN
Frances Gibson La Trobe University
Australia has an aging population which is increasingly reliant on credit and financial services. Although many older people are well off relative to the rest of the community, older people as a group are not homogeneous and there are many older people who are financially disadvantaged. For these people consumer credit issues and financial problems can be significant. What are the financial services and consumer credit issues which have the potential to affect disadvantaged older consumers? There is clearly a lack of research data in relation to problems faced by older consumers and this presentation outlines a research project on this topic which has developed as a partnership between La Trobe University Bendigo and the Loddon Campaspe Community Legal Centre involving law students enrolled in the University's new clinical course Rural and Regional Issues in Justice. Issues that arise when involving students in research will be discussed.
COMPULSORY CLINICAL: IS THERE A WAY? Judy Harrison The Australian National University
This paper argues that 'clinical' should be a compulsory part of the curriculum running the length of the law degree for each student. The paper argues that the issue isn't 'why do it', it is 'how can Australian law schools achieve it?'.
The paper considers graduate attributes in law, flexible learning, students' construction of knowledge and reflective practice. It suggests that the answer to 'how' lies in instructional design. This would locate students' lives, aspirations and at least modest community
service aspects, as the 'learning environment'. The paper gives examples of typical intended learning outcomes, which are recognisably 'clinical'.
The paper is interposed with discussion points aimed at promoting critical evaluation of the ideas expressed in the paper.
ADVOCACY TRAINING KIT: AN
EXERCISE FOR STUDENTS IN SELF-DIRECTED,
EXPERIMENTAL AND BLENDED LEARNING
Robert Hayes & Francine Feld University of Western Sydney
Robert Hayes and Francine Feld are co-authors of The Advocacy Training Kit (2007), published by the Law Students Association of the University of Western Sydney. The Kit draws upon the experience and expertise of UWS Law Alumni, experienced judges and practitioners, and the law student body itself. Proceeds from the sale of the Kit go entirely to the LSA, to fund its provision to the student body of advocacy and other skills training.
Effective advocacy training requires participation of experienced advocates, who may not be available in sufficient numbers to allow timetabling of regular training sessions in weekday class times over the course of the entire semester. The Kit facilitates a strategy whereby students can work in small groups in their own time in preparation for a weekend training session conducted by one senior advocate, and presided over by a judicial officer, in which the students can both be tested on, and further develop the knowledge and skills base required for, researching and presenting matters in the six key areas which are its focus. These are set out in Part one: • • • • • Tendering a document Making an application Preparing and presenting a case Plea in mitigation Written advocacy: appeal against sentence
The Kit contains, in relation to each of the six nominated areas, the following: • • • • A practice exercise Written instructional material DVDs of instructors speaking about and engaging with students in presentation of the exercises Written and DVD recorded commentary on the ethics of advocacy.
The Kit thus facilitates a strategy whereby students can work in self-directed mode, on blended learning materials, in preparation for their experience of presenting, under instruction from an experienced practitioner, in a moot court presided over by a current judicial officer, over a single weekend session, six exercises paralleling each of those matters covered in Part one. The Kit contains 12 exercises, namely, the six systematically deconstructed in Part one of the Kit, and the parallel exercises which the students would be required to prepare and present in the weekend training and assessment session.
Robert Hayes and Francine Feld will discuss use the Kit to demonstrate their use of student-centred, self-directed, experiential and blended learning strategies in advocacy training.
COMMERCIAL AND CONSUMER PROTECTION
A New Personal Property Securities Law for Australia Barry Allan University of Otago
In April 2007 the Council of Australian Governments agreed in-principle to implement a nationwide law for the recognition and registration of security interests in personal property, based upon a model used in the USA, Canada and New Zealand. The most significant impact of this law, if adopted, will be upon those who presently rely upon
if they retain it for long enough to read it. Rather than using established principles to determine the time of formation of the contract and incorporation of the ticket’s terms. (ii) the extended protection given to proceeds of same and (iii) the protection given to foreign interests upon arrival of collateral into the jurisdiction. the court departed from this analysis. the judge 4
.Friendly approach? Aviva YM Freilich The University of Western Australia
The law about the contractual status of terms in unsigned documents is that they are incorporated by the doctrine of reasonable notice.
In a recent case. (now confirmed by the results of behavioural research). with specific attention given to (i) the Purchase Money Security Interest. The theory is that if they don’t agree with the terms they can hand back the ticket and there is no contract. Consumer.
This objective principle was developed as part of the classical contract default rules in the interests of certainty and efficiency but also in the face of knowledge.ownership of personal property to secure rights to be paid. the person’s attention must be drawn to it for it to be incorporated). under retention of title.
The Incorporation of Contractual Terms in Unsigned Documents-Time for a Realistic. EBay International AG v Creative Festival Entertainment Pty Ltd FCA1768 which involved over the counter sales of tickets to a rock concert. (If a particular term is onerous. that these tickets are rarely read. This paper examines the treatment of such transactions under the New Zealand Personal Property Securities Act 1999. as long as they are aware there is writing on it. hire purchase. the contract will be concluded after that time and will include all the terms on the ticket. Their status is likely to be re-characterised as that of a secured creditor. consignment and lease transactions. In the ticket scenario. the law has developed based on nineteenth century cases exemplified by Parker v South Eastern Railway (1877 ) 2CPD416 . When a person enters a transaction and receives a ticket .
realistically used the perceptions of “the ordinary reasonable person”. the concept of merchantable quality( s71(1) and s66(3) of the Trade Practices Act).
The case as a precedent is not weighty (single judge. Rares J referred to the fact that the buyer did not have “… the astuteness of an experienced commercial lawyer dealing with ticket cases ( who could) recognize the ability to return the ticket and demand a refund….” His honour downplayed “the precise contractual analysis” of the transactions but rather emphasized the fact that they were “consumer transactions mainly effected with young people who were not experienced in the commercial world” and they would interpret the transaction as one they could not get out of. The inherently anti-competitive nature of such conduct is reflected in the fact that price fixing is deemed by the TPA to substantially lessen competition in the market in which it occurs. rendering the conduct illegal per se. 5
.) This preferable subjective standard should also be applied as a determinant of incorporation of terms in the context of unsigned documents. and the concept of what constitutes a defective good ( Part VA of the Trade Practices Act. If it were this would clearly have a desirable impact on the format of tickets and ticket sales as well as the practices and protocols of ticket sellers. unreported decision) but it serves as a reminder of the gap between rule and reality. It is about time that the reasonable expectations of the non-drafting consumer were applied in this branch of consumerrelated contract law as they are in other areas. inter alia. arrangement or understanding that has the purpose or effect of fixing the price of any goods or services they supply. The test of the reasonable expectation of the consumer is applied usefully and without difficulty to.
IN PROVING PRICE FIXING UNDER THE
PRACTICES ACT Brenda Marshall Bond University
Corporate competitors in Australia are prohibited by ss 45 and 45A of the Trade Practices Act 1974 (Cth) from making or giving effect to a contract.
actions brought by the Australian Competition and Consumer Commission for alleged price fixing within a range of industries have frequently failed on this point. it is opportune to consider the issue of unfair terms in consumer contracts and.Establishing a breach of the price fixing provisions of the TPA depends therefore on the apparently simple requirement that a ‘contract. needed to prove that a ‘contract. Recent defeats suffered by the ACCC include the dismissal of its price fixing allegations against various petrol retailers in APCO Service Stations Pty Ltd v ACCC  FCAFC 161 and ACCC v Leahy Petroleum Pty Ltd  FCA 794. In doing so. Indeed. the paper will consider why the issue of unfairness in contract terms arises and whether or not existing concepts of unconscionability have offered consumers an appropriate framework for dealing with potentially unfair contract terms. However. focusing on the implications of these decisions for the ACCC in its prosecution of price fixing agreements. arrangement or understanding’ to fix prices exists. arrangement or understanding’ to fix prices can be shown to exist between competitor corporations. to assess the alternative regulatory models available to deal with this issue. proof of the necessary ‘contract.
PROMOTING FAIRER CONSUMER CONTRACTS: AN ASSESSMENT OF THE ALTERNATIVE
Frank Zumbo The University of New South Wales
With the Productivity Commission currently reviewing Australia’s consumer policy framework. arrangement or understanding’ can be problematic. arrangement or understanding’ and the evidence. both direct and circumstantial. In reviewing the operation of the existing concepts of unconscionability particular attention will be given to how the courts have increasingly emphasized procedural unconscionability 6
. The paper considers the judicial interpretation of the terms ‘contract. in particular.
Against the background of price fixing litigation in Australia. this paper analyses the recent APCO and Leahy decisions.
On the 2 March 2007. 7
. With this in mind. the availability of alternative regulatory models for promoting fairer contract terms will be explored and an assessment made of their effectiveness. enhance certainty of consumer contracts by promoting transparency. either directly or indirectly. affects the implementation or enforcement of the continuous disclosure and insider trading provisions of the Corporations Act 2001 (Cth). Chris Pearce. This was followed on 5 March 2007 by two more important papers: 'Review of Sanctions in Corporate Law' and 'Review of the Operation of the Infringement Notice Provisions of the Corporations Act 2001'. Each of these papers. In this way consumers would be less likely to question the operation or fairness of contractual terms as they would have available to them a readily accessible mechanism for having potentially unfair contract terms scrutinized for their clarity or potential for shifting contractual risks or obligations disproportionately onto the consumer. along with clear guidance from the relevant enforcement agency. released the 'Insider Trading Position and Consultation Paper' with the aim of providing greater protection for investors against insider trading. through the Department of the Treasury.under such concepts thereby reducing significantly the impact that those concepts may have had in promoting fairer contract terms. One such alternative model involves enacting a new legislative framework for dealing directly with allegedly unfair contract terms in a timely and targeted manner and in a way that does not undermine the certainty of consumer contracts. Such a new legislative framework can. has issued in rapid succession since the beginning of March 2007 a number of consultation papers. clarity and fairness of contractual terms in a way that the existing concepts of unconscionability have been unable to do so. the Parliamentary Secretary to the Treasurer.
DEVELOPMENTS IN CONTINUOUS DISCLOSURE POLICY DEVELOPMENTS AND
INSIDER TRADING: PROVISIONS FOR THE FUTURE
Josephine Coffey The University of Sydney
The Australian Government.
both exchange traded products and over-the-counter markets for equities. Some commentators fear that the elevation of shareholder claims in Sons of Gwalia may have significant implications for ordinary unsecured creditors in corporate insolvencies in Hong Kong. the one ranked third would be monitoring and enforcing laws relating to insider trading. In particular. in the vanguard of a public backlash if there is a market downturn. building on best practice overseas. Tony D'Aloisio. Is it in anticipation of tougher policies. are a likely agenda to follow these reviews.. in his 'Opening Statement on ASIC's Priorities for the Next 12 Months'.Public comments regarding all three papers were submitted in June 2007 and policy changes.
. that 'a special team is being established to determine what additional actions ASIC (in cooperation with ASX) can take in the areas of continuous disclosure. The recent landmark High Court decision in Sons of Gwalia Ltd v Margaretic (2007) has altered the topography of modern Australian insolvency law by recognising distributive equality in the treatment of shareholder and ordinary unsecured creditor claims in certain circumstances.. there are identical statutory debt subordinations provisions in both jurisdictions which subordinate shareholder claims in favour of ordinary creditors.. asserted that the focus would be on six priorities..to assess new investigation techniques. continuous disclosure and market manipulation.
The incoming Chairman of ASIC. presented to the Senate Standing Committee on Economics on the 30 May 2007. derivatives and other financial products'?
STATUTORY DEBT SUBORDINATION IN AUSTRALIA AND HONG KONG AND THE IMPACT
OF SONS OF GWALIA: A COMPARATIVE PERSPECTIVE
Anil Hargovan The University of New South Wales
Australia and Hong Kong share a common legal heritage in the area of corporate and insolvency law. with legislative amendments to be administered by ASIC.
The remedies and enforcement mechanisms differ considerably. This paper considers what role the public interest should in enforcing statutory duties and whether such a role represents a challenge to the dominant shareholder primacy norm of corporate law. We contest that viewpoint and argue that. A comparative assessment is made.This paper assesses the prospects of the ramifications.
SHAREHOLDER PRIMACY REVISITED: DOES THE PUBLIC INTEREST HAVE ANY ROLE IN STATUTORY DUTIES? Jason Harris. directors and officers have obligations that extend beyond the narrow conception of the protection of shareholder wealth. of the impact of Sons of Gwalia in the legal treatment of shareholder claims in corporate insolvencies in Hong Kong. noting material differences in the commercial landscape between the two jurisdictions. Anil Hargovan & Janet Austin University of Technology Sydney. This issue is topical as recent decisions have suggested that the statutory duties of directors and officers are limited in their scope to protecting the interests of shareholders. leading to the conclusion that the impact on creditors in Hong Kong will be minimal. unless accompanied by other significant law reform. at least in relation to statutory duties. which raises the question as to whether the public enforcement of statutory duties carries with it a public interest mandate that general law duties do not. & The University of New South Wales
The conventional view of corporate regulation is that corporations are to be managed for the benefit of their shareholders. if any. if any.
. However. The general law and statutory duties of directors and officers reflect this “shareholder primacy norm”. with duties formulated to prevent directors acting otherwise than in the interests of shareholders. the general law and statutory duties are not identical. even to the detriment of the public interest.
The ASIC’s powers will be examined within the context of the doctrine of separation of powers and the constitutional limitations imposed on administrative bodies and Parliament within the commonwealth sphere. clearly focusing on Parliament’s purpose for introducing this provision.
.THE CONSTITUTIONALITY CRITICAL APPRAISAL Margaret Hyland
POWER TO ISSUE INFRINGEMENT NOTICES:
University of Western Sydney
The proposed paper will examine whether or not the current statutory provisions under Part 9. which empower the Australian Securities and Investments Commission (ASIC) to issue infringement notices. An argument will be formulated concluding that determinations by the ASIC to issue infringement notices is an exercise of judicial power by a Commonwealth administrative body.
The critical analysis will support the argument that infringement notices under the Corporations Act 2001(Cth) are constitutionally invalid and that the provision should be either repealed or amended to bring it within power. are constitutionally valid.4AA of the Corporations Act 2001(Cth).
A brief overview of the rationale for the introduction of infringement notices into the legislation will be given. An analysis of the ASIC’s power to issue infringement notices within the Federal context of the Corporations law will be provided indicating that the present regime raises serious questions as to the scheme’s Constitutional validity. which is not permitted under the Constitution.
will promise the regulator to do or not to do certain actions. this paper reflects on the action that may be taken by ASIC if an enforceable undertaking is not complied with. This paper. The alleged offender.
The paper also considers the origin of enforceable undertakings and takes into account the enforceable undertakings accepted by ASIC from 1998 (the date this sanction became available to this regulator) to 2006. It observes the instances under which ASIC enters into an enforceable undertaking and the alleged offences that lead to the acceptance of an enforceable undertaking. the result achieved in the enforceable undertaking will reflect the compromise that is agreed upon by the parties involved. This sanction is widely used in the regulatory community for it allows the regulators to reach plausible solutions to alleged offences without spending the resources of their agencies or the resources of the courts.THE
POWER OF THE
ACCEPT ENFORCEABLE UNDERTAKINGS: AIMS AND CURRENT PRACTICES
Marina Nehme University of Western Sydney
An enforceable undertaking is one of the many sanctions that are available to the Australian Securities and Investments Commission (ASIC). Accordingly. Lastly. known as the promisor. use of the entity and its interaction with others. This paper looks at the use of the enforceable undertakings by ASIC. The paper also surveys the promises given in an enforceable undertaking and the goals that may be achieved by these promises.
PIERCING THE VEIL OF INCORPORATION: DOES IT ONLY APPLY TO SHAREHOLDERS? David Parker Victoria University
Piercing of the veil is one of the metaphorical terms used to describe the process whereby courts examine what is in reality occurring within the corporate entity in terms of control. while acknowledging the 11
. An enforceable undertaking is a promise enforceable in court.
traditional application of piercing between the entity and shareholders, proposes that piercing has a wider application to various company participants. Those participants include the company controllers and managers who might otherwise have cloaked their activities, or least have taken the protection of the separate entity.
This paper draws on the lifting and piercing of the veil distinction to demonstrate that the principle may be described as something of a methodology, which is used to analyse what is occurring within the company. Piercing might be described as an invasion or probing of the company entity. The piercing process in some instances might be called a lifting of the veil in order to assess the activities, or even the culture of the company, to find controllers of the company, or even the company itself liable for what has occurred within that entity.
MAKING GREATER USE OF CIVIL SANCTIONS FOR BREACHES OF CORPORATE LAW. Michelle Welsh Monash University
The Department of Treasury is currently conducting a review of sanctions in Corporate Law. One of the consultation issues is whether or not greater use should be made of civil sanctions for breaches of the Corporations Act 2001 (Cth). The civil sanctions that are the subject of the Department of Treasury’s review are contained in the civil penalty regime in Part 9.4B Corporations Act 2001 (Cth). This paper contains an evaluation of the Australian Securities and Investments Commission’s (ASIC’s) use of the civil penalty regime between 1993, when the regime was introduced, and 2006. Based on this
evaluation it is recommended that greater use be made of the civil penalty regime for breaches of the Corporations Act 2001 (Cth). While greater use should be made of the civil penalty regime it must be recognized that these enforcement provisions will not be suitable for all breaches of the Corporations Act 2001 (Cth).
COMPARATIVE AND ASIAN LAW
LAW AND PUBLIC POLICY: TAMING THE UNRULY HORSE? Mr Kanaga Dharmananda & Mr John Southalan The University of Western Australia
What guidance on judicial independence in Australia can we draw from the 1995 Beijing Principles and other countries in the Asia Pacific? This question is addressed by considering three issues: what are the key criteria for judicial independence from the Beijing Principles and from other countries in the region; what is the position of judicial independence in Australia; and for those areas identified as requiring attention, what legal and public policy issues ought be considered in addressing these areas?
In 1995 the Beijing Principles on Independence of the Judiciary were adopted by Chief Justices in the Asia-Pacific region, addressing matters such as judicial appointment, tenure, dismissal and disciplinary procedures, jurisdiction, justiciability, and resourcing. The Principles claim to 'represent the minimum standards necessary to be observed in order to maintain the independence and effective functioning of the judiciary'. The paper summarises the Principles main provisions, before noting relevant developments in the Asia-Pacific region. From this, the paper identifies five key contemporary criteria for judicial independence: the appointment process, guaranteed terms, supremacy of court jurisdiction, financial autonomy and societal stability.
Judicial independence in Australia is strong, but questions remain on long-standing issues such as the appointment process and the restructuring of courts. Judicial independence is shaped by four forces: the Constitution, legislation, the common law, and practice (of judges, governments, the media, and others in society). Each of these is summarised in relation to the key criteria identified earlier.
Public policy's varying demands, with the ever-present financial framework, provide a somewhat vague and changing context within which to fix the law of judicial independence. By studying the situation and laws in other countries, and reflecting on Australian developments, the paper proposes some common and possibly universal themes for judicial independence in Australia.
APOLOGY AND THE ADVERSARIAL CRIMINAL PROCESS – AUSTRALIA AND JAPAN Francine Feld University of Western Sydney
Last year, Mr Pantic, a “person of interest” in the coronial inquiry into the death of Dianne Brimble on a cruise ship in 2002, made an apology to the family of Mrs Brimble. According to newspaper reports, Mr Pantic, after finishing giving evidence, asked to meet the Brimble family. He then tearfully apologised to them in person for not having done more to help at the time he realised Mrs Brimble was in distress.
The newspaper reports were surprising: an early expression of remorse by a person who may potentially be the subject of criminal prosecution is rare in a country such as ours, with an adversarial system of criminal justice. But in a country such as Japan where “apology is an integral part of every resolution of conflict”, such newspaper reports might be commonplace.
What is unusual and interesting about Mr Pantic’s apology is that it was not made in the context of a plea in mitigation of sentence. Rather, it was in the context of one of the few non-adversarial court processes in Australia – the coronial inquest.
This paper is about apology and acceptance of responsibility in our criminal justice system, and the role that non-adversarial processes have, and might potentially have, in that system. It looks at the barriers to apology inherent in the adversarial model, and compares our system with the Japanese system. It asks whether there is room in our
declaration of emergency. The ability to manipulate elections under the 13th Amendment resulting in recent chaotic events. However election has been postponed and a state of emergency declared in the country as a result of agitations against the moves of the caretaker government constituted after the resignation of the previous government following end of its tenure in the government.system for a process aimed at moral persuasion – a way of persuading offenders to own up and to take responsibility for their actions earlier rather than later. Such boycotts by major political parties adversely affected the economic development and gave rise to anarchy. formal legal provisions though 15
. Election related violence resulted in loss of lives and property. The election was scheduled to be held on 22 January 2007. Masudul Haque University of Western Sydney
In Bangladesh. Both these elections were widely regarded as fair and free though the loosing side did complain about irregularities. a precondition of democracy. postponement of general election etc clearly raise questions about the adequacy of such an amendment. remains a big challenge. The steps taken by the caretaker
government were popularly seen as breaching the neutrality.
The proposed paper would analyse the main provisions of the amendment and raise the constitutionality of such an arrangement that created inconsistencies with the basic structure of the original constitution. like many other developing countries. In order to ensure free and fair election the Thirteenth Amendment Act was passed in 1996 paving the way for a unique constitutional arrangement not replicated in any other country. In the wake of such events a new caretaker government has been appointed by the President. holding of periodic free and fair election.
CARETAKER GOVERNMENT A. Many elections have been boycotted by the opposition parties. The appointment of the new government itself is seen by many as unconstitutional. Moreover. Subsequently two general elections were held under these amendments.M.K.
In 2006. the issue of Chinese product safety is under the spotlight of overseas press. The pet foods in question have contained wheat flours laced with melamine which were imported from China.
. in 2004. banned or issued warning over toxic toothpastes made in China. major incidents regarding product safety hit the headline of local media. Thousands of pets in America were killed after eaten taint pet food. Recently. The pharmaceutical factory in Guangdong Province used diglycol instead of propylene glycol to manufacture the auxiliary material for injections.
COULD THE UNRULY PRODUCT SAFETY IN CHINA BE TAMED BY LAW? Mary Ip The University of New South Wales
Promulgation of the product liability law in 1993 marked the development of the product liability regime in China. Chinese consumers are not protected from defective. the advertisement law. the drug law. the food hygiene law. From times to times. Hong Kong and Australia have either recalled. America. the Chinese product
liability framework is comprised of the consumer protection law. It concludes that enforceability of the constitution and its spirit will remain elusive unless proper institutions are in place and there is a culture developed within the political parties and civil society at large to abide by the provisions. and. in the course of this.important should be seen as symbols of attempts to implement the law's underlying tasks. Despite having a legal regime in place. Toxic cough syrup which claimed 51 lives in Panama has linked to a Chinese company that passed off diethylene glycol as pure glycerine. Singapore. Together with this core legislation. and the rules and regulations formulated by various government authorities. 11 patients were killed after being injected with fake medicine. at least 50 infants in Anhui province were killed by fake baby formula and 170 others had suffered from ‘big-head disease’. For instance. as providing political resources which individuals and groups can utilise to gain their ends. fake or substandard goods made in China. The climax of the Chinese unsafe products is the dead sentence of a former Beijing regulator who took bribes to approve fake drugs.
and then identifies flaws in the regulation of listed companies and stock exchanges caused by the tight control of China Securities Regulatory Commission (CSRC). only effective enforcement of securities market regulations can ultimately protect investors. It then discusses enforcement issues affecting regulators and investors.performance of the Arab Gulf states in addressing the problem of regional copyright piracy exceeds that of many of the western countries. Finally it proposes reforms for regulation and enforcement as their vigor and effectiveness defines the extent and strength of investor protection. China’s rapid market expansion and its interaction with the world market generate more regulatory challenges on top of old persistent regulatory problems resulting from excessive state control. the regulation of foreign investors. However. the current state of investor protection. This paper investigates the regulatory and enforcement issues confronting China’s securities markets and issues of investor protection. A fair and competitive market needs a well-structured and functional regulatory framework that protects investors and maintains their confidence in the market. Moreover. It firstly reviews the current regulatory framework.
INVESTOR PROTECTION IN CHINA’S SECURITIES MARKET Chenxia Shi Monash University
China’s fulfillment of its WTO commitments since 2001 has gradually opened up China’s securities markets and brought about changes in market regulation.
particularly in relation to: o identifying competing interests o balancing those interests and (where possible) considers the role of lawyers in that debate and policy development. the paper analyses the • • • • policy announcements and subsequent debate possible agendas for that policy development of the policy and the proposed federal legislation concept of uniformity. a policy that may seem an ‘unruly beast’ is the change catalyst needed to bring issues out and focus discussion.
In reviewing some of the discussion around the policy proposal that resulted in the Electronic Transactions Act 1999 (the Act). thereby fettering and distorting the ultimate public policy and legal outcomes. with the benefit of hindsight.
The paper considers that the policy and the resultant discussion and change in the law were required to achieve economic and social change as well as changes in the law.
The paper identifies some of the outcomes and discusses whether. the paper proposes that balance is required to ensure that taming does not result in legislation that supports particular ideology and agendas.CONSTITUTIONAL AND GOVERNMENT LAW
ELECTRONIC TRANSACTIONS ACT 1999:
AN UNRULY BEAST OR A NEEDED CATALYST
Lynn Du Moulin The Australian National University
This paper proposes that in looking at public policy and technical law (in this case Commonwealth legislation).
In doing so. it was an ‘unruly horse’ or whether common sense and practicalities provided a balanced outcome to ‘enable business and the community to use electronic
The appointment of the new government itself is seen by many as unconstitutional. declaration of emergency. The steps taken by the caretaker
government were popularly seen as breaching the neutrality.
The proposed paper would analyse the main provisions of the amendment and raise the constitutionality of such an arrangement that created inconsistencies with the basic 19
. The election was scheduled to be held on 22 January 2007. Many elections have been boycotted by the opposition parties. remains a big challenge.K. Both these elections were widely regarded as fair and free though the loosing side did complain about irregularities. like many other developing countries. a precondition of democracy.communication in their dealings with government” (subsection 3(d) of the Act positioning the Act as a foundation for e-government in the public policy and law landscapes. Subsequently two general elections were held under these amendments. In the wake of such events a new caretaker government has been appointed by the President. Election related violence resulted in loss of lives and property.
CARETAKER GOVERNMENT A. Such boycotts by major political parties adversely affected the economic development and gave rise to anarchy. In order to ensure free and fair election the Thirteenth Amendment Act was passed in 1996 paving the way for a unique constitutional arrangement not replicated in any other country. postponement of general election etc clearly raise questions about the adequacy of such an amendment. holding of periodic free and fair election. Masudul Haque University of Western Sydney
In Bangladesh. The ability to manipulate elections under the 13th Amendment resulting in recent chaotic events.M. However election has been postponed and a state of emergency declared in the country as a result of agitations against the moves of the caretaker government constituted after the resignation of the previous government following end of its tenure in the government.
It concludes that enforceability of the constitution and its spirit will remain elusive unless proper institutions are in place and there is a culture developed within the political parties and civil society at large to abide by the provisions. one group of participants in that film were bound to a particular code of conduct. and.
.structure of the original constitution. in the course of this. This does not appear to be an isolated incident in the application of the Constitution. However. when this code did not suit their requirements.
The purpose of this article is to examine the “blinkered’ reasoning found in the decision and to suggest that in adopting this approach the High Court has usurped the role of the people expressly provided for in section 128 of the Constitution. as providing political resources which individuals and groups can utilise to gain their ends. In Pirates of the Caribbean – The Curse of the Black Pearl. This seems to be the course of action the High Court has adopted in New South Wales v the Commonwealth. Moreover. the code was described as “guidelines more than your actual rules”.WHAT RELEVANCE CONSTITUTIONAL ADVANCEMENT Ian Henry Victoria University
In New South Wales v The Commonwealth  HCA 52 the High Court upheld the Commonwealth government’s right to control industrial relations through the use of the corporations power.
CONSTITUTIONAL REVISIONISM. formal legal provisions though important should be seen as symbols of attempts to implement the law's underlying tasks. The methodology by which this occurred can be compared to a racehorse running with blinkers on.
Consent is not an issue when the conduct merely involves minor harm or offence.CRIMINAL LAW
THE MORAL LIMITS OF CONSENT IN THE CRIMINAL LAW Dennis Baker University of Western Sydney
The focus of my paper is on the moral limits of consent in the criminal law. Feinberg’s principles are now the most widely accepted critical moral principles for limiting criminalisation. I outline a critical moral argument for limiting the scope of consent in the criminal law. I ask whether R. Conduct should only be criminalised when there are ‘critical’ moral reasons for doing so. Brown is reconcilable with critical morality. In his two later volumes he makes it explicitly clear that ‘legal moralism’ and ‘legal paternalism’ are insufficient grounds for criminalizing conduct. because there are certain rights (humanity as an end in itself) that a person cannot alienate. v. etc. I am concerned with consent in the context of gross harms (e. The harm principle provides a necessary but not sufficient condition for criminalisation. However. consenting to broken bones. The classical critical principle used for limiting the scope of the criminal law is John Stuart Mill’s ‘harm principle’. The critical morality is about producing ethical and normative reasons to demonstrate that something ought to be the case. which holds that morally wrongful ‘offence to others’ is criminalisable in appropriate circumstances. Brown is reconcilable with critical morality. He supplements that harm principle with a further critical principle. death. blinding. I question the weight that Feinberg gives to the concept of consent in the criminal law.). I argue that R.
. Feinberg’s harm principle differs to Mill’s in that it is not an exclusive ground for criminalising conduct. In my paper.g.. v.
this paper explores the principles underpinning the decision to criminalise conduct. Such principles include harm.TAMING
THE UNRULY CRIMINAL LAW:
DO YOU DRAW THE BOUNDARIES OF
Kelley Burton Queensland University of Technology
Criminal law is extending its boundaries to capture conduct that was previously described as civil or regulatory in nature. Making these contrasts will help determine where to draw the boundaries of criminal conduct. The unruly nature of criminal law has not occurred because the decision has been based on the toss of a coin. The unruly nature of criminal law is a serious problem for law makers who need to know what conduct should be criminalised and what conduct should not be criminalised to inform the scope of future criminal laws. public and private distinction. individual autonomy and the politics of lawmaking.
. Analysing these principles will result in a greater understanding of the decision to criminalise conduct.
To further understand the unruly nature of criminal law.
The unruly nature of criminal law has occurred because several principles underpin the decision to criminalise conduct. immorality. in some jurisdictions public nuisance. For example. Rather than recommending the shrinking of the criminal law to tame it. trespass. throwing things at a sporting match. this paper will contrast criminal wrongdoing from civil wrongdoing from the perspective of the wrongdoing and compensation distinction. It is also a serious problem for members of the community who need to know the minimum standards of behaviour.
community welfare. are criminalised. photographing people in private places without their consent and BASE jumping from a building. and the essentialist distinction.
In May 2006 an Issues Paper was released which considers “whether the current categorisation of homicide offences should be retained and whether an amendments should be made to the existing law. The offence of “first degree murder” would be the same as wilful murder in Western Australia whereas the offence of “second degree murder” would be broader than the offence of murder in Western Australia and include cases of causing death where the offender intended to do serious harm. In other Australian code and common law jurisdictions the offence of murder covers both these states of mind. focussing on wilful murder and murder. Throughout reference will be made the English Law Commission in an effort to understand why the English Commission is proposing the introduction of an offence classification similar to that existing in WA at a time when WA is considering its abolition.
. whereas murder covers cases where the offender intended grievous bodily harm.THREE DEGREES OF MURDER Thomas Crofts Murdoch University
The Law Reform Commission of Western Australia was commissioned in 2005 to examine and report on the law of homicide and the need for reform. Wilful murder covers unlawful killings were the offender intended to kill the victim. such as provocation or diminished responsibility.” One of the unique features of the West Australian Criminal Code which the commission has been particularly asked to review is the distinction between “wilful murder” and “murder”. This paper will examine the case for reform of the law of homicide in Western Australia. While the WA Law Reform Commission is examining whether to abolish the distinction between wilful murder and murder the English Law Commission is recommending the introduction of offences which are broadly similar to those existing in Western Australia. was recklessly indifferent to causing death and where the offender killed but had a partial defence to an intentional killing.
Part 2. which is divided into two parts. and many of the defences. This is not helped by what appears. will address two principle themes. we will attempt our own theoretical rationalization concluding whether on this basis change and/or reform is necessary. rationality and justice. the research undertakes an initial critical analysis of the criminal law as it relates to the reasonable or ordinary person. Sydney
The subjective/objective approach to criminal liability is perhaps the most difficult aspect of criminal law to understand. to be an inconsistent and often contradictory approach taken to legal definition and application. examples being reasonable forseeability as an approach to causation. at least.
So-called objective tests are a component of the fault element of some offences. the definition of dangerous for unlawful and dangerous act manslaughter and reasonable fear by a victim for psychic assault.
. which is not yet complete. see for example provocation. self defence and duress. The focus of the research described in this paper is on one aspect of this subjective/objective divide. This is Part 1. the way in which the law uses the notion of a mythical reasonable or ordinary person as a benchmark.
Our research. note for example negligent manslaughter. certain aspects of the defendant’s liability are determined. against which. While this will necessarily involve a critique of the work of others. seeks to make sense of or rationalize the various approaches taken by the criminal law where the conduct and mind of the objective person serves as the benchmark to assess the conduct and fault of the accused.THE NOT SO ORDINARY. In order to begin to understand such complexities. Objective tests also form part of the conduct element of
offences. REASONABLE PERSON OR THE MAN FROM CLAPHAM JUST GOT
OFF THE BUS
Ian Dobinson & Lesley Townsley University of Technology. and the basis for this paper. that being.
. where he was acquitted of murder. The latter had briefly pursued the gang in his police car before he stopped at the spot where the Holden had come to an abrupt halt. and was shot dead by a gang member. where a new trial was ordered. and the gang members who were with him in their vehicle. to near conclusion on 27 May 07 with the DPP’s acceptance of his plea of guilty to manslaughter. The saga continued from a joint murder trial aborted by the illness of counsel. to which there was no demur in the High Court. a Holden. his appeal against conviction to the Court of Criminal Appeal.
By the time the case reached the High Court. s546C of the Crimes Act 1900. the following two side issues emerged: •
examination of the scope of the common law doctrine of “extended common purpose”. by allowing members to be convicted of the most serious crime committed by a gang member (incongruously termed the “incidental offence”) in the course of the foundational offence. in the course of the saga. Francine Feld & Adam Payne (research assistant) University of Western Sydney
The saga of Motekai Taufahema began in March 2002 when Taufahema. because it is no offence against the criminal law.EXTENDED COMMON PURPOSE: NOTES TAUFAHEMA HCA 11
INTRIGUING SIDE ISSUES FROM R
Robert Hayes. developed to control gang participation in a so-called “foundational offence”. not Taufahema. However. in particular. that failing to stop when signalled to do so by pursuing police could not constitute a “foundational offence”. and a Crown appeal to the High Court. the relevant issue was the appropriateness of the CCA’s quashing of the conviction and acquittal of the accused as opposed to ordering a new trial. and
assertion by the CCA of the proposition. through a subsequent trial of Taufahema alone. failed to pull over when signalled to do so by Senior Constable Glen McEnallay.
While the writers would seek but could not expect any reduction in the scope of this form of liability in the current political climate. they would both aspire to and expect a redefinition of “hindering” under s546C of the Crimes Act 1900 to encompass clearly the anti-social behaviour of failing to stop when signalled to do so by pursuing police. The Criminal Code (NT) was subsequently amended in 2004 to increase the maximum penalty from 7 to 16 years imprisonment.
LAW AND PUBLIC POLICY: TAMING THE UNRULY HORSE? Andrew Hemming Charles Darwin University
In Hales v Jamilmira  NTCCA 9. the victim who was promised to the defendant was just 14 years old and was brutally assaulted prior to anal intercourse.
The side-notes on Taufahema state the boundaries of extended common purpose at their maximum possible permissible limits. an Aboriginal person was convicted of the offence of carnal knowledge where the victim was his promised wife under sixteen years of age and on appeal was sentenced to 12 months imprisonment suspended after one month.The writers examine the judgments of the CCA and High Court in Taufahema for any light which they might cast on the issue of whether the limits of extended common purpose might be set so broadly in any particular case as to raise fresh doubts that the doctrine pushes too far the boundaries of complicity based upon mere foreseeability of risk.
The writers also examine the CCA’s conclusion that failing to stop when signalled to do so by pursuing police involves no offence under criminal law in New South Wales. Following a public outcry at the sentence again being suspended after one month. the DPP appealed 26
In The Queen v GJ  NTCCA 20. indicating that they potentially cast an unacceptably wide net.
However. The Board’s report has just been released (15 June 2007) and it found that child sexual abuse is serious. the Northern Territory Government set up a Board of Inquiry to report on allegations of sexual abuse of Aboriginal children. widespread and often unreported.”
Education is seen as the key and much of the report focuses on improving existing government programs to help Aboriginal people break the cycle of poverty and violence. and the weak will be protected against personal violence insofar as it is within the power of the court to do so.the sentence as manifestly inadequate with one of the grounds being the sentence gave no weight to the 2004 legislative amendments which increased the penalties. The Board of Inquiry found that “the answer lies not in removing the 27
In August 2006. children. The Board of Inquiry supported such an amendment. the report did discuss submissions from the Director of Public Prosecutions and the Northern Territory Police Force.
One of the DPP’s recommendations was that legislation be enacted to abolish the Crofts direction [Crofts v R (1996) 186 CLR 427] which provides that the Court may give a warning to a jury relating to the quality of the evidence in a case where there is long delay.
“It is impossible to set communities on the path to recovery from the sexual abuse of children without dealing with the basic services and social ills.
The Northern Territory Police Force recommended that the Bail Act be amended to include serious sexual offences against children in the presumption against bail provisions.
The NTCCA accepted that the head sentence was manifestly inadequate and referred to R v Wurramara (1999) 105 A Crim R 512 at :
“The courts have been concerned to send what has been described as ‘the correct message’ to all concerned. that is that Aboriginal women.
or are necessarily integral and inevitable consequences of participating in sports. the control of participator violence was the responsibility of sports governing bodies. the need where possible to leave the child in situ. in recent years. the criminal laws are being used to seek redress by victims of participator violence. the familial relationship between them. in the context of sexual abuse of children. However. with some calling for its control and/or elimination from sports. how legislative changes may assist the courts to meet the objective set out in R v Wurramara (supra) that “the correct message” is sent out. their respective present and proposed living arrangements. referees.presumption but in increasing the guidance given to the courts in how the discretion pursuant to section 24 [which sets out the criteria to be considered in bail applications] is to be applied” (at page 126). These are participants who believe that there is a need for a more stringent punishment for perpetrators of sports field violence that culminates in injury to other participants.
The factors a court is to take into consideration where an alleged sexual offence has been committed against a child include: the child’s age. the focus of this paper will be to examine.
While recognising that a court of law is a “blunt instrument” for dealing with widespread social problems. In cases where the perpetrators of sports field injuries are deemed to be at fault. and disciplinary tribunals. In the past. while others perceive it as inevitable results of participation. It is also becoming increasingly clear that sports participants are reluctant to accept that all of their injuries were either consented to. the alleged offender’s age. they expect to receive
. and the wellbeing of the child ( Recommendation 35).
THE INTERFACE BETWEEN CRIMINAL LAW AND SPORTS PARTICIPATOR VIOLENCE Kwame Ampofo-Boateng University Technology MARA. Malaysia
The punishment of violence perpetrated by participants in sports has attracted debate in recent years.
the category encompasses only affirmative defences. diminished responsibility and infanticide) or broad construction (including intoxication and automatism). on the other hand. In making this argument. while in other cases it extends to cover putative defences such as the ‘defence’ of intoxication. the nature and types of offences committed. The need for the intervention of the criminal law in sports participator violence is questioned and evaluated to show the difficulty of applying criminal laws to resolve sports violence and the likely evolution of the law in future is highlighted. properly understood. exculpation (or partial exculpation) rests on the defendant’s abnormality and. on the one hand. or disciplinary tribunals. What it is that unites mental incapacity defences qua mental incapacity defences seems either elusive or contested. is commonplace in criminal law scholarship. For example. Yet. and with increasing regularity. This means that the category of mental incapacity defences includes the defence of automatism but excludes the partial defence of provocation. The scope of exculpation (or partial exculpation) on the basis of mental condition or mental incapacity seems capable of either a narrow (perhaps limited to insanity. which are not structured around the reasonable person standard. The paper addresses the criminalization of sport participator violence that results in injury. The criminal process. Categorization of some defences as mental incapacity defences.some sanction or punishment from their sports governing bodies. and the defences available. and the likely results of litigation are assessed.
PUTTING MENTAL INCAPACITY DEFENCES TOGETHER AGAIN Arlie Loughnan The University of Sydney
Defences deny liability or responsibility (or both) for criminal offences. this paper draws on the UK jurisprudence on mental incapacity
. referees. mental incapacity defences encompass those defences in which. This category of defences features in academic monographs and in a number of criminal law textbooks. or mental condition defences. the intervention of the criminal law. This paper argues. in some instances. the parameters of this category of defences vary considerably.
vague or uncertain terms. Much of the criticism of the amendment was aimed at the use of broad. Wayne Rumbles The University of Waikato
New Zeland is relatively a latecomer in the criminalisation of cyber-crime. robust and stable network.
The amendments to the Crimes Act were not without criticism from both the computing and legal communities. but rather he was charged under the theft provisions of the Crimes Act for stealing internet access. it was not until October 2003 when the Crimes Act was amended by inserting specific offences under the title of “Crimes Involving Computers” and expanding theft to include stealing of intangible property that we specifically criminalised hacking and other cyber-crime.
CYBERCRIME@NZ: ‘CRIMES INVOLVING COMPUTERS’4 YEARS ON. R v Smith (Morgan)  1 AC 146.
The computer security and network engineer communities raised concerns that the amendment would criminalize legitimate activities aimed at ensuring a secure. contract and some cases expand the meaning of these statutory terms. the recent House of Lords decision. The Davies case involved the downloading of music and legal pornography at work he was not held liable for any contravention of work place computer use policy.
. This paper will explore the developing body of case law arising from these cyber-crime sections and analyse these in terms of the criticisms levied at the amendments.defences. This paper will consider possible ramifications of the Davies cases in criminalizing the non-criminal use of network resources. in particular. four years on and the Courts have begun to define. While the courts have yet to set the limits of criminal liability they have discussed the legitimate (or otherwise) use of network resources in the Davies cases.
This paper seeks to consider whether the defences are still relevant or should be abolished or modified and reformed. Canada and the United Kingdom are considering or have made reforms. There have been some examples recently which highlight the strain between the two. Over the years both defences have undergone change through interpretation in cases and through legislative amendments. the influence that they have on each other and the difficulties that can arise. How much should public opinion influence law reform? In some of the discussion there is a perception that some people are just asking for trouble. This has been to some degree in response to cases which have caused concern amongst the public as well as governments.IS
THE VICTIM TO BLAME?
ISSUES WITH REGARDS THE DEFENCES OF
PROVOCATION AND SELF-DEFENCE IN THE CRIMINAL LAW CONTEXT
Jennifer Yule Queensland University of Technology
It is relevant to consider the relationship between the law and public policy. Other Australian jurisdictions as well as New Zealand. Gender and cultural bias is also to be considered. Tasmania abolished the defence of provocation in 2003 and Victoria followed in 2005.
. Is there a tendency to blame the victim?
There has been debate about whether the defence of provocation should be changed or abolished as well as consideration of changes to self-defence. These cases include instances where men have successfully used the defence of provocation after killing their former female partners as well as same sex relationship issues. Battered woman syndrome also needs to be considered in relation to the defences of provocation and self-defence and whether the actual term is appropriate as well as relevant expert evidence.
This provided a realistic simulation of online
negotiation because the students did not have any face-to-face contact prior to conducting the negotiation and did not know anything about the students with whom they are negotiating. experience.
TEACHING MEDIATION AS REFLECTIVE PRACTICE Samantha Hardy La Trobe University
It is fairly uncontroversial to say that it is impossible to teach mediation in a didactic lecture style. They were given their opposing students’ email addresses and had one week to conduct the negotiation by email. It also evaluates the students’ survey responses and the impact of the exercise on students’ learning outcomes.DISPUTE RESOLUTION
ONLINE NEGOTIATION AS A TEACHING TOOL David Spencer & Samantha Hardy Macquarie University & La Trobe University
In 2006 undergraduate law students from Macquarie University Law School and the University of Tasmania law school participated in an online negotiation exercise. Students submitted a record of their negotiation and a reflective journal about their experience of the process. very little consideration has been given to how trainers can Drawing parallels with the
effectively ‘coach’ students through these role plays.
. This paper discusses what worked well and what could be improved about the exercise. Students of mediation very rarely understand the process and the skills needed to conduct a mediation until they are sitting in the mediator’s chair and trying it out for themselves. Tasmanian students were given one side of a role play and Macquarie students the other side. Most mediation courses use roleplays to give students this
However. Following the exercise students were also surveyed about the impact of the simulated on-line negotiation on the learning objectives of students.
The European Union’s Emissions Trading Scheme (referred to as the ‘EU-
ETS’) is an apt model for comparison with the Australian proposals because it has been operating with some success since 1 January 2005 and has been the subject of review. Meanwhile.
IDENTIFICATION AND DISCUSSION OF THE REQUIREMENTS FOR AN EFFECTIVE CARBON TRADING REGIME
AUSTRALIA: A COMPARATIVE APPROACH BETWEEN
EUROPEAN UNION EMISSION TRADING SCHEME EMISSION TRADING SCHEME Caroline Hart University of Southern Queensland
Proposals for emissions trading schemes are being advanced by both the Australian Government and the State and Territory Governments. allocation of emission allowances. Is Australia in danger of being left behind as
Europe (amongst other nations) has managed to implement a carbon trading scheme as a means to deal with the effects of climate change due to increased carbon emissions?
This paper discusses aspects of a legal framework necessary to establish and support an Australian carbon trading scheme. and compliance and enforcement. including the scope of such a scheme.architectural design studio.
. with stock exchanges in Europe gaining status as major carbon traders. this paper
identifies the institutions and property rights needed to support an emissions trading scheme. this paper seeks to develop a model of best practice for mediation coaches. the State and Territory governments have put forward a proposal demonstrating possibility. greenhouse gas permits and monitoring and reporting. the European Union has already implemented an emissions trading scheme. As part of the discussion. While the Australian
Government’s proposals appear hastily drafted. transaction registries.
Overview of the paper The structure of this paper is as follows: Part I provides the international context in which emissions trading schemes have been developed. Part III outlines the European Union’s emissions trading scheme.
FRAMEWORK CONVENTION ON CLIMATE CHANGE Laura Horn University of Western Sydne
This paper explores the operation of the concept of ‘intragenerational equity’ in the United Nations Framework Convention on Climate Change (UNFCCC) and the accompanying protocol. Part IV analyses the implementation of the EU-ETS. Protocol to the United Nations Framework Convention on Climate Change (Kyoto Protocol).
The consideration of equity in the UNFCCC is set out in Article 3 as follows: The Parties should protect the climate system for the benefit of present and future generations of humankind. Finally. the United Kingdom. including an example of legislation passed by Member State. This cooperative action has become more urgent due to the likely faster advance of climate change than was originally anticipated.
. the developed country Parties
should take the lead in combating climate change and adverse effects thereof. Part II outlines the proposed Australian emissions trading schemes. This concept is significant because it indicates how developed and developing States will cooperate to reduce greenhouse gas emissions and take action to address climate change. Accordingly. on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities. Part V concludes with a summary of proposed recommendations for the development of an Australian emissions trading scheme (an ‘AU-ETS’).
It will particularly focus on the actions of the world’s largest mining companies in developing countries. The mining companies argue that they are designed to achieve ‘best practice’. To this end. in part. for a range of reasons. particularly as between developed and developing States. respectively.Intragenerational equity is expressed in the UNFCCC through the concept of ‘common but differentiated responsibilities’ because this concept indicates the responsibilities of both developing and developed States in the UNFCCC. Minerals and Sustainable
Development project and the Mining Certification Evaluation Project. to name a few. These programs have been initiated by the ‘top tier’ transnational mining companies often in partnership with transnational non-government organisations. There are obligations for developing State parties to this convention such as the provision of financial assistance and the transfer of technology to developing countries. Global environmental climate protection will not succeed without the support of both developed and developing countries. upon the resolution of the issues arising over the application of intragenerational equity. the implementation of the legislation varies from these Australian jurisdictions. Indeed the focus of the Tanzanian and Papua New 35
. regardless of whether the mine is situated in a developing or developed country.
protection legislation in these jurisdictions has been drafted with the assistance of Western Australia and Victoria. the Mining.
SELF REGULATION: TAMING THE ‘UNRULY’ MINING COMPANIES? Noeleen McNamara University of Southern Queensland
The last 10 years has seen a proliferation of self regulatory initiatives in the mining industry: the Global Mining Initiative. case studies of mines in Interestingly. Some argue that these initiatives are merely ‘green washing’. It is argued in this paper that the successful implementation of the UNFCCC will depend. Yet. and has the same sustainable development commitments. the environmental
Tanzania and Papua New Guinea will be utilised.
This paper will discuss the role of such initiatives in terms of their impact on environmental compliance.
The paper discusses various decisions of the Environment Court which have determined whether or not consents should be granted for wind farms in particular locations. Certain changes have been made to the purposes of the Resource Management Act to give support to the utilisation of renewable energy. and the role that self regulation has played in achieving this behaviour. It will also discuss the important role that NGOs – either working in partnership with industry. Are the top tier miners (at least) the unruly horses that they have been portrayed as in the post Ok Tedi world. impacts of the mines. These purposes must be balanced against the more traditional objectives to protect the natural character of the coastal environment and to protect outstanding landscapes from inappropriate development. the Resource Management Act 1991 sets out the guidelines for decision-making in respect of all development. or can they be trusted with their ‘licence to operate’?
WIND POWER CONSENTS IN NEW ZEALAND Kenneth Palmer. The University of Auckland
The paper identifies the Kyoto Protocol as a driving force for supporting the utilisation of sources for renewable energy. In New Zealand. or independently as ‘watch dogs’ – have played in this outcome.Guinean governments tends to be more on the social.
. rather than environmental. whether permitted under Regional or District Plans or requiring a resource consent.
The ongoing technical developments of wind farms have resulted in an increasing number of power companies making applications for electricity generation by wind turbines.
The paper will consider whether the ‘major’ mining companies are complying or indeed going beyond compliance with the environmental laws in developing countries.
the weight or sincerity of public concern will not carry the day nor will the precautionary principle. A statement could bring a degree of stability to the present competition between the various power companies in the development of wind farms. The paper will look briefly at the factors which appear to contribute to public concern. Is this the correct approach in 21st century democracies? There is an argument that legislation. the exotic nature of the hazard. Public concern is closely associated with the “nimby” and “banana” principles. The leading case in planning law across the Australian jurisdictions being Broad v Brisbane City Council  2 Qd R 317. the vulnerability of those involved. planning instruments or the courts and tribunals should elevate public concern as a factor which. It is also recommended that in the long term the issue through the Minister for the Environment of a national policy statement could assist as to the choice of suitable locations and energy generation priorities. such as children. should be taken into account and 37
.A conclusion is reached that an appropriate balance is presently being maintained between the endorsement of renewable energy sources and the protection of outstanding landscapes. Such applications as mobile phone towers and electricity transmission lines and social concerns such as brothels and licensed premises are typical of the types of development which draw community protest.
The result of this analysis is that unless the fears of the public are based on sound scientific evidence. the degree of scientific uncertainty. independent of scientific support.
DEALING WITH PUBLIC CONCERN IN PLANNING AND ENVIRONMENT MATTERS Mark Tranter University of Southern Queensland
This paper looks at the concept of public concern: the heightened response of significant members of the public to development proposals. for example. The main focus of the paper is to look at planning decisions on such topics and the weight which public concern is given in those decisions.
Similar concerns have been articulated in Europe in relation to the establishment of the “Common Market” that subsequently resulted in a the adoption by the European Community of a programme of action on the environment.play a decisive role in planning decisions. AND PUBLIC POLICY Trevor Daya-Winterbottom The University of Waikato
Climate change provides a unique challenge for all governments. as a result of the tax. which now provides the basis for environmental regulation by the member states. face significant risk to their competitiveness relative to producers in jurisdictions with less stringent climate change policies. These are examined as well as some suggestions of how planning legislation might be amended to incorporate greater recognition of public concern. There is a UK Court of Appeal decision and an Queensland Planning & Environment Court decision which point in this direction. in response to the Kyoto Protocol the New Zealand Government adopted a preferred policy package in 2002 which included a commitment to introduce a low level carbon tax as part of a range of measures to give effect to New Zealand’s obligations under the Protocol.
Concern about the relative competitiveness of NZ business in relation to climate change illustrates neatly the potential for law and policy to distort the economy. Both the global scale of the issue and specific domestic responses transcend jurisdictional boundaries.
The NZ Government also provided for “Negotiated Greenhouse Agreements” as a mechanism to exempt firms and industries from the proposed carbon tax that would.
The debate about them involves matters of constitutional and economic importance.
EQUITY AND TRUSTS
PROBLEMS WITH THE CLASSIFICATION OF DISCRETIONARY TRUSTS Jason Harris University of Technology.Most recently the Australian Commonwealth Parliament has reported on the need for harmonization of legal systems to remove barriers to trade both within Australia. leaving the debate on harmonization of environmental law for bodies such as the Environmental Roundtable of Australia and New Zealand to pursue. particularly the 39
. One of the basic assumptions that is often stated in cases and textbook commentaries is that beneficiaries under a discretionary trust hold a “mere expectancy” because they have no right to receive a distribution from the trustee.
Safeguarding against economic distortion and reducing the barriers to trade are significant public policy issues. That report focused on commercial law.
This paper will therefore discuss NZ climate change policy against the backdrop of the current debate about harmonization of environmental law in Australia and New Zealand. and between Australia and New Zealand. and the European experience in developing common policy on such matters. Can this expectational interest be treated as “property” in equity? What are the consequences of answering this question?
Recent decisions in company law and taxation law have raised difficult questions about the nature of beneficial interests in different types of discretionary trusts. the related constitutional and economic arguments. Sydney
The law of trusts is often taught on the basis of a distinction between fixed and discretionary trusts. and that there are varying rights and obligations that accrue to beneficiaries under each type of trust arrangement.
Further. there is little published material to demonstrate that the idea has 40
. the paper establishes that the majority of law schools in Australia teach legal ethics as if it were only concerned with the law of lawyering. However. the paper suggests that the pervasive method should be complemented by one or more discrete subjects solely dedicated to the context and substance of the law of lawyering. Australian law schools teach ethics-as-law. Furthermore.
PLANNING FOR PERVASIVE ETHICS LEARNING IN THE LAW CURRICULUM Michael Robertson Griffith University
The argument for pervasive ethics seems to have originated in the American literature on law school ethics teaching. This paper will discuss these cases for the purpose of critiquing the traditional fixed/discretionary dichotomy in trusts. law schools compress the teaching of legal ethics to one single subject in the whole of the undergraduate degree. and subsequently received some attention in Australian literature. the paper calls for the adoption of a new understanding of legal ethics as the capacity to exercise legal ethical judgment. First.analytical problems posed by so-called “hybrid trusts”. Australian law schools teach legal ethics discretely.
ETHICS AND THE LEGAL PROFESSION
THE TEACHING OF ETHICAL JUDGEMENT Gonzalo Villalta Puig La Trobe University
This paper inquires what and how Australian law schools teach about legal ethics and suggests what and how they should teach about it. It also calls for a pervasive method of instruction that integrates legal ethics issues and the process of legal ethical judgment into every subject making up the undergraduate degree.
for that matter). there are numerous other aspects of the nature of law. the rationale for across-the-curriculum ethics engagement remains compelling.
. together with some of the difficulties in implementing such a proposal. The pendulum in this respect seems to have swung away from self regulation to varying degrees and methods of state intervention. especially when law graduates’ understandings of ethical responsibility remain uncertain or even doubtful.
An exploration of how and if those challenges can be met will be undertaken. This paper reports on a modest proposal to create ethics learning opportunities in 10 core subjects in the legal curriculum. There is an argument to be made that for several reasons any regulatory regime imposed on lawyers is doomed to fail. Nevertheless. Most obviously lawyers are experts at manipulating and subverting rules. the lawyer client relationship.successfully been implemented in Australian law schools (or elsewhere. or that the implementation of pervasive ethics learning opportunities has led to better student learning outcomes.
ARE LAWYERS REGULATEABLE? Duncan Webb University of Canterbury
Considerable academic debate has raged over whether lawyers can or should be left to regulate themselves.
This paper asks a more demanding question – are lawyers regulateable at all. However. and legal problems which mean that at the very least regulating lawyers is challenging.
In some cultures a shared parenting regime would be inconsistent with cultural expectations. This is to be achieved through mandated family dispute resolution. This paper questions whether that 'cultural shift' will appropriately meet the needs of separating families within culturally and linguistically diverse (CAULD) communities. 42
. Will family dispute resolution practitioners reconcile the emphasis on shared parenting with cultural expectations? For some cultures it may be inappropriate to discuss family matters with strangers. will the concerns expressed by immigrant women's groups and others about the risks of violence to women and children separating from violence partners be appropriately addressed?
This paper seeks to consider whether the 'cultural shift' intended by recent family law reforms will adequately accommodate cultural diversity. The amendments propose to provide families with better ways to resolve relationship disputes and to reduce the emotional costs to families and children of conflict and separation. However.
The inquiries which preceded the reforms and the amendments overtly identified the importance of culture to the parenting and well being of children. Research suggests that separating CAULD families have not generally utilized mediated dispute resolution. Will FRC's be appropriately resourced to identify and meet the special needs of CAULD clients? What might be culturally appropriate family dispute resolution practice for CAULD communities? For particular CAULD clients? For example. largely undertaken by newly created Family Relationship Centres.FAMILY LAW
‘A CULTURAL SHIFT?’ THE NEW REGIME OF FAMILY DISPUTE RESOLUTION Susan Armstrong University of Western Sydney
The Family Law Amendment (Shared Parental Responsibility) Act 2006 promised to bring about a 'cultural shift in how family separation is managed'. there was no consideration whether the shared parenting philosophy of the legislation or the processes designed to facilitate and maintain a child's cultural connections are in fact culturally appropriate.
While much of this interest has centred on social welfare and compulsory support schemes. requiring signatories to take appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property and to control their own financial affairs. it is significant that article 12(5) of the Convention specifically addresses the financial rights of disabled persons.
.” While the Convention is largely concerned with social aspects of these rights.MAINTAINING VULNERABLE DEPENDANTS: THE EMERGENCE SUPPORT SCHEMES Kay Maxwell University of Wollongong
The ways in which one might best provide for the financial support and wellbeing of dependents has been a topic of social enquiry and legislative activity over many years. in particular. as evidenced in the 2006 United Nations Convention on the Rights of Persons with Disabilities.
This paper will consider the emergence and role of voluntary schemes for the support of vunerable dependents and. and particularly to the rights of disabled children. However. represents a “paradigm shift in attitudes and approaches to persons with disabilities…It clarifies and qualifies how all categories of rights apply to persons with disabilities and identifies areas where adaptations have to be made for persons with disabilities to effectively exercise their rights and areas where their rights have been violated. The convention. to which Australia is a signatory. the ways in which parents and other carers might voluntarily support their dependants has received far less attention. times may be changing. those dependents who are disabled. The emergence in Australia of special disability trusts and other similar schemes internationally coincides with a broader approach to the rights of disabled persons. and where protection of rights must be reinforced.
It is noteworthy that a number of the more recent changes are the product of recommendations that go back to the earlier years of the scheme. The paper will conclude with a consideration of the ramifications for children and parents of the reforms and will argue that there remain a number of areas that warrant further attention.
. including the new child support formula.WHERE TO NOW? Geoff Monahan & Lisa Young University of Technology & Murdoch University
The child support scheme is no longer a ‘child’ – it has now been with us for more than 18 years. the scheme has been the subject of numerous government-sponsored reviews that have resulted in change. While the formula itself has been tinkered with over the last decade.
What we have had for nearly two decades is a largely administrative based scheme that has probably worked much better for the country in solving a particular socio-legal problem than the traditional judicial system it replaced. it would be fair to say that the scheme represents the ‘next best solution’ to help resolve a socio-legal problem that impacts upon a significant number of Australian families. It will then analyse the broad thrust of the reforms that have occurred over the last year as well as those proposed for next year. Big changes are planned for 2008 to help it celebrate its third decade.
This paper will provide a brief overview of the child support reviews that have occurred over the last two decades.REFORMING CHILD SUPPORT LAWS. Much admired and much maligned. Despite its relative infancy. the time was probably right for it to be overhauled for its third decade.
The simultaneous growth of interest in and local expertise with Collaborative Family Law Practice offers a timely opportunity to develop a world-class family law/dispute resolution service in Australia. NO WORRIES? THE DISCRETION TO ALLOW THE LATE COMMENCEMENT OF FINANCIAL PROCEEDINGS FOLLOWING RELATIONSHIP BREAKDOWN Geoff Monahan University of Technology. be brought to finality within a reasonable period of time after the relationship ends.
This paper will examine how the courts have interpreted their discretion to allow an ‘out of time’ application following relationship breakdown..OUT OF TIME. the law also provides a judicial discretion to allow an ‘out of time’ application to be determined. traditional family law practice. Nevertheless.. Sydney
The current changes being implemented in the approach to and conduct of family law matters will bring great challenges to. While it remains appropriate for an applicant to address the issue of the delay in the commencement of late proceedings.
CHANGES TO THE PRACTICE OF FAMILY: THE ROLE OF COLLABORATIVE FAMILY LAW PRACTICE AND THE INTERDISCIPLINARY PRACTICE POSSIBILITIES. Marilyn Scott University of Technology. there is recent judicial comment that this is not mandatory and that the focus should be on ‘hardship’ issue alone. and may even signal the eventual demise of. one area of shared policy is that financial relationships between domestic partners should. wherever possible. The interdisciplinary approached. Sydney
While policy currently delivers different legal outcomes for married and unmarried relationships. These changes include a shift from a lawyer-focused approach to a client-centred one. 45
. with the establishment of the Family Resolution Centres (FRC) and the establishment of Family Dispute Resolution Practitioners as gatekeepers to the Family Court.
The latter would include referrals to appropriate agencies for relationship counselling and parental education programmes.
FAMILY RELATIONSHIP CENTRES: STUDY
CHANGES IN FAMILY DISPUTE RESOLUTION
FAMILY LAW ACT
Usha Vidot Charles Darwin University
The paper will explore a range of issues arising from the changes in Family Law dispute resolution practice. The FRC. California and Cambridge (UK). Ontario. From 1st July 2006. The Darwin FRC is run by a consortium between Relationships Australia NT (RANT) and Anglicare NT through its Resolve Family Dispute Resolution division (RFDR). both in its family dispute resolution services and in its family/relationship strengthening services. It also requires a cultural change in perceptions about professional boundaries in family law practice. The operational model for the Darwin FRC was that of community development and capacity building. while RANT has
. The sub-contracting was put in place to utilize as fully as possible the family dispute resolution expertise and corporate histories of the two agencies in family dispute resolution – RFDR has been delivering FDR for some 12 years. the ACT.
RANT and RFDR contribute substantially to the family dispute resolution service delivery for the FRC through a sub-contracting arrangement.premised on an emphasis on some kind of ongoing and functioning social relationship between divorcing clients and their families. this paper proposes an holistic approach to implementing the cultural changes and professional development that is anticipated for a successful transition to this new practice of family law. Subsequent to recent research conducted in New South Wales. including one based in Darwin. reviewed quarterly. guiding the arrangement. including post-separation parenting. 15 Family Dispute Resolution Centres (FRC) commenced operation around Australia. RFDR and RANT have a Memorandum of Understanding. is dependent on professional re-tooling the way the allied professionals practice together.
pre-FDR interviews and FDR conferences are conducted at the agencies’ premises rather than those of the FRC. the provision of FDR in highly complex cases. the shift from the previous Family Law Act modalities of mediation and conciliation to the current dispute resolution modality with its critical focus on both child inclusive practice (CIP) and child-focussed practice (CFP). For the majority of clients.done so for some 5 years. the management of FDR when there is family violence identified.
INDIGENOUS PEOPLE AND THE LAW
BALANCING THE HUMAN RIGHTS OF INDIGENOUS PEOPLE IN THE TERRITORY Greg McIntyre University of Notre Dame
In the wake of the Little Children are Sacred report to the Northern Territory government the Commonwealth government declared a ‘national emergency’ arising from the sexual abuse of Aboriginal children and announced it would introduce the following measures in Aboriginal communities in the Territory: • • • • • • • • A sixth month ban on alcohol on Aboriginal land The compulsory acquisition of Aboriginal townships for five years to improve property and public housing A ban on pornographic videos and an audit of Commonwealth computers to identify pornographic material The quarantining 50% of welfare payments so it can only be spent on essentials Linking of income support and family assistance to school attendance and providing meals to children at school which are to be paid for by parents Compulsory health checks for Aboriginal children under 16 An increase in police numbers on Aboriginal communities Engaging of the army in providing logistical support
The paper will explore the Darwin FRC’s experience of a previously untapped client base.
ancestral homelands. particularisation of laws and customs and the bundle of rights argument. Promising though this legal position may sound the task of obtaining that recognition in the courts is an arduous one. Canada and to a lesser extent New Zealand considering such aspects as historical background. UNITED STATES OF AMERICA.•
Abolishing the entry permit system to Aboriginal reserves for common areas. the power to make laws for the people of a race and the power to acquire property on just terms.
In this paper we compare and contrast proof of native title in Australia. It will be shown that historical and political 48
. In all the countries in question Indigenous people bear the burden of proof in establishing the existence of native title and in Australia the requirements of proof are particularly onerous. including the Convention on the Elimination of Racial Discrimination. the external affairs power. recognition of native title. including reference to the Territories power. Any legislation introduced by the Commonwealth to authorise the measures will be examined according to those Constitutional restraints and International law standards. the International Convention on Civil and Political Rights. United States of America. CANADA AND NEW ZEALAND: HOW DO INDIGENOUS AUSTRALIANS FARE? Jennifer Greaney & Ruth Bohill University of New England & Southern Cross University
Native title is recognised in western jurisprudence as a form of title to land pre-existing and surviving European acquisition of sovereignty. road corridors and airstrips
This paper will explore the executive and Constitutional power of the Commonwealth to undertake the measures announced.
PROOF OF NATIVE TITLE IN AUSTRALIA. normative societies. nature of native title. the Convention on Economic and Social Rights and the Convention on the Rights of the Child. It will evaluate the measures in the light of International law. elements of proof of native title. changes to traditional laws and customs and continuity and abandonment.
ANU's 'Race and the Law' course suggests that a more broadly-framed curriculum. presumably.factors combined with jurisprudential developments have resulted in Indigenous people in Australia having a particularly difficult task. where an Aboriginal teacher deviates from those expectations.
. in proving native title in the courts. and this can assist majority students to understand law's role in this context. producing a classroom much more representative of the global population than usual. Related problems can arise for 'white' teachers who do not teach the material with complete detachment: who wants to be taught by someone no more Aboriginal than I am?
By contrast. Secondly. At least in cities like Canberra. if only because of the discomfort that many Aboriginal people feel with academic priorities or Australian teaching loads. relatively speaking.including. not just discrimination and disadvantage . it seems to attract larger numbers of minority students.
WHY TEACHING RACE AND THE LAW IS MORE CRITICALLY EFFECTIVE THAN TEACHING
INDIGENOUS LEGAL ISSUES
Jennifer Clarke The Australian National University
Australian law schools have had difficulty recruiting and retaining indigenous lawyers to teach courses about indigenous people. And thirdly. it allows consideration of the construction of identity through privilege. has three advantages. rather than an obsessive focus on a tiny minority.an angle sometimes difficult to inject into 'indigenous' courses. This brings a depth of experience of racialised identities which is very valuable for student learning. it justifies an explicit focus on the law's role in constructing and protecting 'white' identity. these classes seem to attract considerable numbers of 'white' students looking for an authentic or uniform experience of Aboriginality who feel frustrated if they do not encounter it . containing considerable material on indigenous issues. First.
). The first is “Aboriginal freehold” under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth. However.
The second theme pursued in the paper positions the conclusions reached in regard to the ownership of organic carbon in the context of existing greenhouse gas emission trading schemes.INDIGENOUS PARTICIPATION
GREENHOUSE EMISSION TRADING SCHEMES:
INDIGENOUS CARBON SINKS – ASHES IN THE MOUTH? Matthew Storey Charles Darwin University
The paper considers the issue of the potential benefit to Australian indigenous communities arising from the development of natural greenhouse “sinks”.) on land the subject of a pastoral lease granted pursuant to the Pastoral Land Act 1992 (NT).
This examination is pursued in two themes. the paper examines whether indigenous communities can engage in a market arising from greenhouse emission trading scheme “credit” mechanisms through means of either existing or adapted land management regimes. the requirements under the Protocol for carbon sequestration mechanisms to qualify for “credit” under the trading scheme. The second “tenure” are rights pursuant to a determination of native title under the Native Title Act 1993 (Cth. In turn this suggests there may be need 50
The paper (at this stage tentatively) concludes that the management of greenhouse “sinks” could provide a viable activity for indigenous communities that facilitates genuine economic rewards for the continuation of traditional land management skills. Specifically. the paper also concludes that this result is not possible under trading schemes bound by the current terms of the Kyoto Protocol. In particular. The first theme considers the issue of “ownership” of organic carbon under different forms of land tenure relevant to indigenous communities. Two forms of tenure are considered in particular. The primary focus in this theme is the content of greenhouse gas emission trading schemes founded upon the elements of the Kyoto Protocol to the United Nation Framework Convention on Climate Change.
It displays some anomalies which it would be a pity to see reproduced in future cases. to make some comment on the reasoning process used in the decision-making. and for other difficulties of statutory interpretation in this field. is that the public policy behind the introduction of moral rights has been incompletely enunciated by the Australian government. It is necessary.for any Australian emission trading scheme to depart from the terms of the Kyoto Protocol and indeed provides a basis for considering the appropriateness of the application of the terms of the existing Protocol beyond the developed “first world”. thus adding one victory to the very small number of authorial moral rights victories across the common law world. From that point of view. The parties and the Magistrate faced a somewhat difficult task. Indeed the degree to which public policy can or should be stated by the legislators in cases where the statute in question is designed to bring Australia into compliance with international obligations is a matter of some difficulty in itself. The case was Meskenas v ACP Publishing Pty Ltd. In the event.
INTELLECTUAL PROPERTY MORAL RIGHTS ACTION: MESKENAS V ACP PUBLISHING PTY LTD Elizabeth Adeney Deakin University
In 2006 the Federal Magistrates Court was called upon to decide the first moral rights action that has come to the point of adjudication in Australia. since no Australian precedent existed that would have elucidated the operation of the rights in this instance. One possible reason for these anomalies. decided in August 2006 in Sydney. the Magistrate found in favour of the applicant. the decision is a welcome one for arts communities worldwide.
COPYRIGHT AS INTELLECTUAL PROPERTY Geoffrey Hart The University of Sydney
Since the Statute of Anne 1709. unduly restrictive and that it cannot be justified in its present form. existing legal regimes such as competition law. we argue that there are sound reasons for this and that specific legislation needs to be introduced with caution. the public good. and intellectual property laws. which have traditionally been used to address marketing issues. The essence of property in a modern market economy is the right to exclude others and the right to transfer the property.
Although existing laws do not comprehensively address the practice of ambush marketing. The paper compares the Bill with ambush marketing legislation in the United Kingdom and South Africa. and state regulation. 52
.EVENTS MANAGEMENT IN NEW ZEALAND: ONE LAW TO RULE THEM ALL? Susan Corbett Yvonne Van Roy Victoria University of Wellington
The Major Events Management Bill (“the Bill”) is a New Zealand government bill that is intended to prevent the practice of ambush marketing in connection with “… major events that are of international significance”. The Bill will apply to any event in New Zealand that is declared to be a major event. the basis of British copyright law has been property. consumer laws. have always maintained a balance between individual freedoms.
The paper examines the competing rights and freedoms in this area of business activity and considers the underlying reasons why traditional laws do not prevent and have never prevented activities similar to those now described as ambush marketing. We conclude that the Bill is over-broad.
In subsequent statutes.
The normal function of property has been to allocate resources where there is a natural scarcity. if it had been
assigned. if he were still living. the rights then reverted to the author. the Copyright Act 1968 (Cth). This raises the question of why all users of copyright materials should not be entitled to nonexclusive licences where they are prepared to pay an equitable remuneration to the copyright owner.
The property concept was introduced in the Statute of Anne at the behest of publishers. combined with excessive duration. Copyright lasted 14 years in the first instance and. now 70 years in Australia. The Copyright Amendment Act 1980 (Cth) has introduced statutory licences to allow the production of materials for educational use subject in some cases to the payment of equitable remuneration. Europe and the USA. but it is even less justifiable today when the new technologies are making information far more accessible to the community. however.In Australia. to the detriment of authors and the book-reading public. grants exclusive rights to the copyright owner (ss 31. and the duration of copyright in works was extended to the author's life plus 50 years. Copyright. 85-88) and also a right to alienate these (s 196). creates scarcity where it would otherwise not exist.
The property concept. Instances abound where the alienation of copyright has served the interests of entrepreneurs such as publishers. They sought to distinguish copyright from other monopolies which by that time had fallen into disrepute.
The basic purpose of copyright law should be to strike a balance between the rewards granted to the creative individual and the public interest in maintaining the free flow of ideas throughout the community. It is doubtful whether such a contrived scarcity has ever benefited the public interest. can severely prejudice both the creative individual and the public interest.
there have been both negative and positive impacts resulting from the overlap and conflict between existing Trade Mark laws and Geographical Indications. as defined by Geographical Indications which are recognised. and soon to be finalised Bilateral Agreement. amongst other things.
While Australia has lead the way in policy and legislative reform amongst other ‘New World’ wine growers. A fine line remains in progressively developing elements within the current collaborative architecture. as important brand marketing tools and arguably increases the wine exporting opportunities for Australia. policy and legal sense. Firstly. Theories including Neo-Classical and Institutional Perspectives have arguably significantly influenced Australian strategic policy considerations and the emphasis of trade relations has been brought to the fore in recent decades by the Australian Government. to ensure that it is viable on an International and National fore both in an economic.THE EC-AUSTRALIA WINE LAW AGREEMENT. including South Africa and USA. developed by Australia.
A pertinent example highlighting the encouragement of the growth of economic relations is seen in the implementation of the Agreement between Australia and the European Community on Trade in Wine and Protocol 1994. the operation and impact of the Geographical Indication regime and the significance and consequences of its implementation in the Australian wine sector. Secondly. the use of wine regions. 54
. TRIPS AUSTRALIAN WINE LAW AND TRADE RELATIONS Sarah Hinchliffe Monash University
AND THEIR EFFECT ON
This paper will look at the interdependency and impact of National and International environmental factors including legal and economic aspects on the Australian Wine industry. Australia’s strategic evolution in combining collaboration and competition as a ‘New World’ wine producer has replaced the merely competitive relationships of the past.
On an International level.
Two longstanding cases in particular have illustrated this ongoing volatility.
David Price Charles Darwin University
Ss. The paper argues that the new parody or satire defence will enhance the copyright regime by striking a better balance between the interests of authors and satirists and parodists. recent developments in the registrability of colours as trade mark have demonstrated that the matter is far from being clearly painted. where fair parodies are permissible under the US fair use defence. The paper contrasts the Australian position with overseas jurisdictions. and since 1 January 2007 a defence exists if an infringement of copyright was a fair dealing for the purpose of parody or satire.
. the Australian Attorney-General announced in May 2006 a proposal to introduce ‘a new flexible dealing provision that will allow for… [inter alia] parody and satire’. 6 and 17of the Trade Marks Act 1995 (Cth) provides that colour.PARODY OR SATIRE DEFENCE Jani McCutcheon The University of Western Australia
Following an inquiry into the possibility of introducing a ‘fair use’ defence and other exceptions to copyright infringement. This paper explores the new parody or satire defence. but that the introduction of a broader defence of ‘transformative’ use was warranted. may be registered as a trade mark. amongst other signs. That promise was realised in the Copyright Amendment Act (Cth) 2006.
‘ALL THE COLOURS OF THE RAINBOW’: A REVIEW OF RECENT JUDICIAL DECISIONS IN
RESPECT OF THE REGISTRATION OF CERTAIN COLOURS AS TRADE MARKS. It considers the diverse definitions of parody or satire and the variety of practices that could (or may not) constitute parody or satire. particularly the USA.
BP recently failed before the Full Federal Court in its latest attempts to secure registration of its shade of green. which also uses a shade of green with other colours in its supermarket fuel outlet franchises. remedies may not be forthcoming. the 56
. the courts have used public policy to find that because of a work’s content or the copyright owner’s conduct.On the one hand. BP has tried for some years to establish its right to register the colour green and ensure its exclusive use in association with its service stations and associated products. Notwithstanding the long tradition of using public policy to regulate copyright. no action will lie or if an action does lie. US and European jurisdictions. under the provisions of the Trade Mark Act. In addition to the use of public policy in reading down legislation. Its application has met with opposition from Woolworths.
This paper examines the implications for colour registrability for trademark registration. The decision by the Full Federal Court in May this year ordered that an appeal by Cadbury against an earlier decision in favour of Darrell Lea be allowed and that the matter be remitted to the trial judge for further hearing. It reviews the latest decisions in respect of the BP and Cadbury cases and other cases and considers whether colour alone is sustainable as a secured basis for registration or whether the added required element of distinctiveness acquires a special significance.
THE HANDMAIDEN AND THE WHIPPING BOY: THE COURTS’ USE OF PUBLIC POLICY IN LIMITING COPYRIGHT PROTECTION Alexandra Sims The University of Auckland
The courts have used public policy to deny or cut back copyright protection to a variety of things. drawing upon other examples from Australian. has recently won its latest round in its longstanding battle against Darrell Lea over the exclusive use of the colour purple in respect of chocolate confectionary products. on the other hand.
Cadbury Schweppes. despite there often being no mention of the ability to do this under copyright legislation.
as it is currently viewed. These contemporary pressures are used to highlight the problems of the international legal system in a globalised. It is needed now more than ever before. The arguments made against the use of public policy are many and varied: it leads to vague and arbitrary decisions. In this article I argue that public policy serves as a vital and legitimate release valve for copyright. and the recognition that some global issues are simply beyond the power of individual states to resolve. may serve as useful examples for the future of global governance. the International Criminal Court. The sovereignty paradox is identified. interdependent world. This topic is drawn from the author’s PhD research on global governance. whereby the pooling of sovereignty is seen as an investment by states rather than an expenditure. whereby paradoxically the only way that states will be able to regain their de facto sovereignty is if they cede/pool/share their de jure sovereignty. the increasing calls by global civil society for greater involvement.
. creativity will be stifled and so on. Contemporary pressures for change from the 20th century experience are identified. Specifically. It is proposed that innovative approaches to the pooling of sovereignty. Sydney
Aligning with the conference theme. and the World Trade Organization. It is proposed that a paradigmatic shift is necessary. including the difficulty in controlling the behaviour of global companies. this topic considers the public policy and broader political dimensions to the international legal system. Thus is comes as no surprise that it has been argued that public policy is akin to an unruly horse: unless the courts are invited by the legislature to ride it they would be better not to do so. the prevailing system of international law is situated historically from the development in 1648 Treaty of Westphalia of state sovereignty. which is entering the examination process.
THE INTERNATIONAL LEGAL SYSTEM: AN UNRULY HORSE? Michelle Sanson University of Technology.courts’ use of public policy has been criticised. as seen in the European Union.
despite African members counting for over a quarter of its 150 strong membership. Why have none of these forty developing countries brought a dispute? Is it because they don’t have any trade problems to complain about? Or do they face obstacles in accessing the system? Access to justice is important for developing countries because interpretation of key instruments in these formative years of the WTO legal system will affect their scope and applicability in the future. this paper identifies four cumulative barriers to access for developing countries in the WTO. These barriers are characterised as (1) cost and expertise. and refuses to comply with legally binding decisions against it. showing how the United States uses its power to bully developing countries into not bringing a dispute against them through threats for removal of food aid. (3) remedies. and Consultant (Moores Legal) Monash University
The streamlining of the rules relating to workplace agreements was one of the main features of the ‘Work Choices’ reforms which transformed the Australian workplace 58
. Not a single dispute has been brought by an African WTO Member. Sydney
Over 360 disputes between states over trade matters have been brought before the dispute settlement system of the World Trade Organization (WTO) in its first 11 years of existence. and proposes ways in which they can be addressed. (2) domestic mechanisms. AIDS drugs.
THE IMPACT OF THE FAIRNESS TEST ON BARGAINING Carolyn Sutherland. Specific focus is given to the US-Cotton decision. and trade preferences. and (4) politics and priorities.THE AFRICAN EXPERIENCE OF THE WTO DISPUTE SETTLEMENT SYSTEM Michelle Sanson University of Technology. Based on research and interviews in fifteen African countries plus at the WTO and NGOs in Geneva.
This paper examines the governance of the . The article will then consider the elements of the Fairness Test and the extent to which the redesigned ‘safety net’ will offer protection to employees who enter into Federal workplace agreements. applying transaction cost analysis to explain institutional change in the .au (Australian) country-code Top-Level Domain since 1986.
LAW AND COMPUTERS
A NEW INSTITUTIONAL ECONOMICS ANALYSIS DOMAIN NAME SPACE John Selby Macquarie University
OF THE . After a relatively non-controversial start. which resulted in a protracted battle over control of the distribution of power and wealth inherent in the ability to influence / control policy and legal rights over that resource. this period involved a significant increase in the awareness by stakeholders of the increasing value of the .
The first section of the paper will briefly outline the key elements of the legal framework for agreement-making which was put in place by the Work Choices reforms. In response to mounting community concern about the use of workplace agreements to erode employee conditions.au domain (as a resource).au domain industry. the Howard Government has introduced a new Fairness Test which substantially changes the legal framework for agreement-making. and will refer to some of the evidence which has emerged about bargaining outcomes during the first year of operation of Work Choices.
.relations system in 2006.au policy-control body and highlights how government preference for “buying in regulation” rather than “making” it underpinned elements of that institutional change. This paper analyses the structure of the . The new rules removed the ‘no disadvantage test’ and important procedural requirements which ensured that employees had genuinely consented to agreements.
3. placed before the House of Representatives on 31 may 2007. present and future. including the role of the law in restructuring processes in transnational insolvencies. with additional regulatory requirements for corporations and new insolvency practitioner information reporting provisions. ASIC registration and disciplinary procedures for Insolvency Practitioners.
Each of these themes presents new challenges to existing corporate protocols. Improving outcomes and additional information for creditors. but also difficult concepts of sector-specific economic efficiencies. 4. The adoption of the UNCITRAL Model Law on cross-border insolvency. In the legal and corporate governance contexts. and a revised statutory pooling procedural process.
This paper examines the substantial interface between the adoption of the procompetition ethos in tertiary-level economies and the strategic management of corporate insolvency. through enhanced protection for employee entitlements. 2. (debate since adjourned) are considerable. competing financial interests and the supervening complex constitutional 60
The proposed Act has five reformist themes ( and an 82 page explanatory memorandum! 1. 5.LAW AND ECONOMICS
AN UNRULY HORSE BEGINS TO GALLOP: AN UNCERTAIN FUTURE FOR AUSTRALIAN INSOLVENCY LAW John T McGrath University of Western Sydney The implications for the education of Legal and Insolvency Practitioners. Enhancing the economic efficiencies of the existing Voluntary Administration procedures. Deterring misconduct by corporate officers. reviews by regulators and domestic courts of the notions of public benefit and detriment must consider not only the legislative enactments. of the Corporations Amendment (Insolvency) Bill 2007.
REGULATING VOLUNTARY EUTHANASIA AND ASSISTED SUICIDE Katrina George University of Western Sydney
Although they remain criminal offences in Australia.
This paper will discuss the decided cases on loss of chance in medical cases. recovery of compensation for an outcome which 'probably' would have occurred anyway was always going to be controversial. Judges. there has been a great acceleration of interest and court attention to recovery for 'loss of a chance'.constraints. summarise the current law in this area and identify issues which remain undecided. The recent flurry of cases in NSW go some way towards creating a framework for this area. Regulators and Corporate Officers will require higherlevel specialist law and economics training to implement the legislation.
LAW AND MEDICINE
LOSS OF CHANCE IN MEDICAL NEGLIGENCE CASES Bill Madden & Tina Cockburn Queensland University of Technology
In a system based on proof on the balance of probabilities. however conflicting decisions overseas. cautious academic comment and ramifications yet to be considered at the appellate court level make the current state of the law little more than a patch of calm before a storm of legal activity. Since the recognition of the availability of compensation for loss of a chance of a better outcome in Rufo v Hosking. The main question posed is the appropriate future proper role of the law in taming developing economic complexities. Lawyers. euthanasia and physician-assisted suicide are still practised in this country and some research suggests at rates higher than 61
There is some evidence of a significant increase in taking life without patient request since legalisation. prohibition could have one advantage over legalisation: the control of ethical values concerning the taking of life.
Notwithstanding its limitations. doctors more accountable and patients better protected. The paper concludes by examining evidence of an increasing approval of non-voluntary euthanasia in the Netherlands and a movement from ‘euthanasia as the last resort’ to ‘euthanasia as choice’. it is far from certain whether patient autonomy is any better safeguarded under prohibition. The evidence points to ‘a culture of deception’.
Many argue that legalisation in some form is the better option for controlling these practices as they would be more visible.
DANGER CRITERION IN MENTAL
HEALTH ACTS MUST BE ABANDONED Robert Hayes & Matthew Large University of Western Sydney & The Mental Health Research and Training Centre
This paper examines the ethical aspects and practical implications of the danger criterion in Mental Health Acts in light of advances in our understanding of psychotic illness since such Acts were formulated.
This paper looks at the highly contested research about the incidence of non-voluntary euthanasia in the Netherlands where assisted death is legal. But legalisation also carries its own risks. When the symbolism of criminal prohibition is removed the risk is an erosion of the taboo surrounding killing and a shift in values and behaviour that is difficult to control. The paper finds that the danger criterion reduces access to care for those patients who are not judged to be dangerous but who may have consented
.in even the Netherlands. It takes as a starting point a hypothetical Mental Health Act with a danger criterion and a definition of metal illness and considers its impact on the treatment of schizophrenia. However. where patients are at risk from a lack of medical professionalism and hidden decision making.
the danger criterion is obligatory for civil commitment. the advent of antipsychotic medications making community management possible. the cost of detaining almost one half a percent of the population.but for some aspects of their illnesses which reduced insight and capacity. A response to these seemingly contradictory aims was to formulate legislation that required that involuntarily detained patients be a danger to themselves or others.
Overdue reforms in the 1970s and 1980s included requirements for procedural fairness and transparency. The purpose of such reforms. expressed even by some psychiatrists. and measures to encourage the use of community care.
Introduction of the danger criterion to mental health law in the 1970s and 1980s was in part a reaction to particular legal precedents such as O’Connor v Donaldson in the US Supreme Court (Stromberg & Stone 1983) and the Winterwerp case in the European Court of Human Rights (Dressing & Salize 2004). but in many jurisdictions world-wide. Russia and Taiwan (Appelbaum 1997). In some jurisdictions there are other criteria for admission such as a need for treatment criterion. the right to treatment. Arguments for change derived from ethical concerns about custodial care without treatment. Israel. psychotic patients” and to “reducing the numbers of chronically hospitalised patients”. The danger-criterion was adopted all but three European countries (Dressing and Salize 2004). as well as a large number of other countries including Canada. every State in the USA (Appelbaum 1997) and jurisdictions within the Commonwealth of Australia. clearly documented in a report following a WHO survey of international mental health legislation (Harding and Curran 1979). and to the influential film “One Flew over the Cuckoo’s Nest” (1976). mental health reform was both inevitable and necessary. that mental illness was a self serving medical myth and that psychiatric hospitals were little more than jails. and increases the rate of hospitalisation of patients who are not at risk of serious harm. included both a desire to “protect the public from potentially dangerous. and the widely held belief.
the threat of a scientific brain drain. that even when it is used in parallel with a treatment criterion some patients suffer civil commitment who in reality would not have harmed themselves or others. allowed a conscience vote. despite 54 Recommendations having been made by a Statutory Review Committee.
THERAPEUTIC CLONING IN AUSTRALIA: THE PROCESS OF APPROVAL Irene Nemes The University of New South Wales
In 2002 the Australian Parliament enacted legislation which prohibited both therapeutic and reproductive embryonic cloning. and the modest increment to
. in December 2006. Proponents of the Bill were influenced by the hope of finding cures for debilitating diseases.
The Prime Minister. this same legislation was amended. and that these reforms have had the subtle effect of reorienting psychiatric practice towards the management of risk. This contrasted with his decision several months earlier.
We conclude that the danger criteria should be removed from MHAs and its implicit requirement for risk assessment should be disregarded. sensing the political mood. as they redirect treatment from those who require it because of their illness towards (1) those who are dangerous but who may benefit less from treatment. against introducing any changes to the 2002 Act.In this paper we argue: that use of the danger criterion alone has resulted in inequitable access to care. Opponents of the Bill used the “slippery slope” argument. and (2) those who are merely perceived to be in class of dangerous people but may or may not be dangerous. Just four years later. which we believe is demonstrably impractical and comes with a significant opportunity cost. reversing the prohibition on therapeutic cloning. while retaining the ban on reproductive cloning. fearing unintended consequences.
social. by way of an International Covenant? What is the likelihood of scientists pushing the boundaries of the prohibitions? What should be the role of law/morality in this debate? Does the legal status of a cloned embryo need further examination? What if a cloned embryo fails to be destroyed within the 14 day statutory period. The effect of that legislation was to preclude the appellant from using the frozen embryos produced by
. retains an absolute prohibition on reproductive cloning and contains strict regulations with heavy criminal penalties.what had been decided in 2002. either through human error or through intent? Will the embryo have a separate legal standing recognised by law? These are just some of the questions which will need addressing as the law tries to keep up with science. The Act requires a review after three years. Will Parliament be asked to extend the legislation further? Does stem cell research demand a global. Approval of the legislation had as much to do with the careful drafting of the provisions as with any rational. The legislation is narrow in scope. in which the appellant asked the Court to overturn sections of UK legislation requiring continuing consent by both progenitors to the use of their embryos in ART.
EVANS V THE UNITED KINGDOM ~ SOME REFLECTIONS Leonique Swart Charles Darwin University
In the context of assisted reproductive technology (“ART”) are men and women equal in sex and reproduction? How do we balance the right to procreate against the right not to procreate? And where do the interests of the child fit in?
This paper considers the April 2007 decision of the Grand Chamber of the European Court of Human Rights in Evans v United Kingdom (“the Evans case”). rather than a local approach. as women voted overwhelmingly in favour of the Bill. Gender played a vital role. or scientific factor. A number of questions remain.
following the lead of countries including Denmark. (“the Disposition Cases”). such as Davis v Davis. Some of the Disposition Cases have attempted to resolve the competing interests of the progenitors via an analysis of the status of the embryo and what interest each progenitor has in the frozen embryo. In addition. Germany.
LEGAL IMPLICATIONS OF CHEMICAL CASTRATION OF SEX OFFENDERS IN CRIMINAL LAW Debra Wilson Massey University
The UK government recently announced a trial program for voluntary chemical castration of sex offenders. and which have produced a range of outcomes. an evaluation of the equality of men and women in sex and reproduction. France. Neither New Zealand nor Australia currently offer such a program.
Analysis of the Evans case and the Disposition Cases provide insight into judicial attitudes regarding people’s right to procreate versus the right not to procreate.herself and her former partner through ART during a happier phase of their relationship. and the interest of children who are born as a result of ART. despite dramatic changes in their emotional and reproductive circumstances. which deal with similar disputes about frozen embryos. Such analysis of the status of the embryo is almost completely absent from the Evans case. and AZ v BZ. although there have been regular debates over the past few years in both
. this paper will also reflect upon what could potentially be the position taken by Australian courts. Given the range of possible avenues of resolution of similar factual scenarios in the US and UK cases. More specifically. some cases consider whether an interest a progenitor can have in a frozen embryo can be proprietary in nature.
The Evans case can be compared with US decisions. Kass v Kass. the decision of the European Court of Human Rights evinces a reluctance to interfere in matters traditionally contained within the private sphere of relationships between men and women. Sweden and the US.
or reports from other countries. or is actually an additional punishment to be imposed on criminals. despite the fact that statistics released by some of the countries mentioned above show impressive drops in sexual re-offending rates following the introduction of such a program. and the extension to use for nonsexual offences. First.
This paper argues that chemical castration ought not to form part of the criminal law. and not be influenced by popular demand. The New Zealand and Australian governments need to carefully consider the legal implications of introducing such a program. In support of this argument. but this does not necessarily suggest that its adoption. or as a condition of parole. Second. it needs to be considered whether chemical castration can legitimately be classified as voluntary when it is offered as an alternative to prison. is appropriate. even if classified as ‘voluntary’. If chemical castration is a punishment this raises issues of human rights. There is little doubt that this particular case was unusual. and these debates will likely increase following the introduction of the UK trial. This issue involves a discussion of its effectiveness in reducing sexual offending.countries concerning this.
AGGRESSIVE UNIVERSITY STUDENTS: IS
THIS A REALITY OR JUST
PARANOIA? WHAT ARE THE MENTAL HEALTH ISSUES FOR STAFF?
Julie Zetler Macquarie University
The recent shooting of 32 people by a Korean international student. the paper discusses two issues that warrant careful consideration. Cho Seung-hui at Virginia Tech is an example of unimaginable tragedy happening within a university setting. eugenics and double jeopardy. the related topic of compulsory contraceptive use for females in the US.
Chemical castration appears to attract a high level of support from the public. If it is in fact non-voluntary then the implications of this need to be carefully considered. and it is hoped that this 67
. it is not clear whether chemical castration is therapeutic in nature.
increased student numbers. it nevertheless highlights for staff potential student vulnerability related to problems like stress. nothing remarkable was done by the university at the time of the report. violence and mental illness. alienation. problems associated with student dissatisfaction and frustration is all too apparent in some areas of university teaching. Unfortunately.
Whatever the combinations of reasons for the resulting catastrophe. it has been noted that other important psychological features were at play at the time including the increasing social isolation. Indeed. international students. However. despite the gun debate factor. an English Professor alerted the university administration of Cho’s mental deterioration. changing management structures of universities. Issues like decreased government funding. it is reported that prior to the shooting. The questions that need to be addressed by universities include: •
Are university students more threatening and aggressive than they were in the past? Is this ‘assertive’ stance engaged in by some students misconstrued as threatening or aggressive behaviour?
Is the Virginia Tech massacre an aberration or does it contain deeper messages that the university community can no longer ignore? What are the mental health issues for staff in this area?
Most media commentators analysing the Virginia Tech event largely credit the scale of the massacre as being directly linked to the availability of guns in the United States. anger and aggressive behaviour of the perpetrator.event does not repeat itself. Examples of this can be evidenced by what seems like an increase in anonymous and often ‘threatening’ e-mails to subject lecturers. Less extreme but similar situations have occurred in Australia as well as other countries. as well as inappropriate personal lecturer comments in subject evaluation forms. Whilst this case clearly represents a situation that sits at the extreme end of the violence spectrum. lack of student support and unrealistic tertiary expectations all contribute to the rise of individual stress levels of student and academic cohorts.
2006 and also included interviews with students who had not passed the subject and those who had received Distinction grades or above.
The project involved the analysis of written exam responses of students enrolled in the first year core Business Law subject in Semester 2. or do not choose.
. and not used. the strategies they used for exam preparation and what additional support or direction they felt could have improved their performance.
LAW FOR NON LAW STUDENTS
IMPROVING COMMERCE STUDENTS’ OUTCOMES IN THEIR FIRST LAW SUBJECT Mark Bender.
The aims of the project were to:
•Investigate which topics (areas of law) students choose. Roger Gamble & Lyn Turner Monash University
This presentation and paper will outline the process and the knowledge from a project that the authors have been undertaking since late 2006.This paper aims to identify and discuss some of the main issues and to engage in discussion about personal stories in this area.
The insights gained from the project have been used to inform the development of on-line study exercises to provide opportunities for developing both content knowledge and study and exam preparation skills. •Conduct a discourse analysis of selected problem questions to explore the written discourse strategies used. •Gain insights into how students gained an understanding of the content and the conventions of Business Law writing. by ‘successful’ and ‘unsuccessful’ students. to respond to on the exam and which problem questions are poorly answered.
These insights have also assisted in the development of teaching strategies, student materials, and curriculum and assessment structure in the subject.
TEACHING LAW WITH GAMES AND STORIES Susan Corbett & Amanda Reilly Victoria University of Wellington
Games and stories are two of the most fundamental ways that human beings teach and learn and a growing body of educational research suggests that they are indeed powerful tools. In this paper we draw on this research to consider how we might improve our teaching of law to non law students.
We begin by clarifying the precise nature of our objectives as teachers. We note that law teachers commonly explain their teaching as comprising the transfer of on the one hand, facts and principles, or “black-letter law”, and on the other, the contextual and societal domains underpinning those facts and principles.
Having next identified any game-like and story-like aspects of our current teaching practices, we then consider these within the context of the formal educational literature on games and stories. We suggest that it is important that the practical and theoretical learning objectives in law should not be seen as discrete entities and that this should be reflected in our use of games and stories as teaching tools.
We conclude that while games and stories are, to an extent, already used in teaching law to non law students, they could be used more effectively to facilitate deeper learning and student engagement and we suggest some ways in which this might be attempted.
MAKING IBL RELEVANT TO GEN Y. Susan Fitzpatrick University of Western Sydney
This paper looks at the process of reviewing the unit Introduction to Business Law (IBL), at the University of Western Sydney (UWS) in 2007. A core first year law subject for non LLB students offered by the School of Law, IBL is taught across three to four of the UWS campuses as well as in a distance mode for external students with enrolments of over 1000 students each semester. The introduction of a new Bachelor of Business and Commerce scheduled for 2008, with IBL as a compulsory core unit provided the institutional impetus for its rejuvenation.
A range of factors have driven the process of reviewing the design and delivery of the unit. The multi campus nature of delivery of the unit and the large number of students enrolled are significant constraints on the unit. The students come from diverse backgrounds, many of whom are the first in their family to undertake tertiary education. Their expectations are also diverse. They are drawn from over twenty different UWS courses, however, for over half the students enrolled in IBL, it is a compulsory unit in their degree and for a large portion of these students, the unit has a strong professional emphasis, being the first of a sequence of law units designed to meet professional accreditation requirements.
A key feature of the review has been an examination of both the role of changing technology and its ability to provide flexibility in the unit. This has involved unravelling assumptions about the different modes of learning for “Generation Y”, a large portion of our student cohort, and a distinctive feature of the review has been an explicit focus on identifying their needs in an effort to design the unit to be relevant, engaging and contemporary.
IN LEGAL STUDIES, WHAT IS THE VALUE OF FEEDBACK? Judith McGowan & Bill Willesee Curtin University of Technology
There is an increasing expectation that law teachers will provide timely and useful feedback to students. There is much research on the effectiveness of feedback generally but this paper has a focus on feedback in the legal studies area. For here process can be as important as content. Feedback may provide comment on the student’s understanding of the course content, but it may also guide the student on broader ‘process’ issues. Which of these forms of feedback provides a better basis upon which students will refine learning and improve grades? That question is at the heart of this research.
Two law teachers/researchers, lecturers in a University Business School, have examined and evaluated the role of feedback provided by them to their students. Two separate groups of students were given an assessment task then each received different kinds of feedback. The groups were subsequently tested again on the same issue and the grade results compared. On the assumption that the comparative grade results were related to the feedback received, the researchers considered the following:
Does the method used to provide feedback impact upon its use and/or
effectiveness? 2. Does feedback need to be personal for the student to recognise its relevance to
their learning, or can generic feedback delivered via the Internet have the same impact? 3. What implications can be made concerning how students perceive and use
different kinds of feedback?
This presentation (and paper to be submitted) will report on the results of this research and make observations on the outcomes, inviting the audience to share their relevant personal experiences.
It is hoped that observations on these issues may provide preliminary insights to: 1. test the assumption that feedback is of strategic learning value to a student 72
the main point being that there should be greater sensitivity and awareness for our Chinese students. While some of these students may actually study in a law degree. and hopefully a greater discussion on how their needs might be addressed. Similarly this paper attempts to consider the debate as to whether Chinese students might be characterised simplistically as surface rote learners. particularly in utilising some aspects of Confucian learning. The paper proposes some suggestions for discussion. either at an undergraduate or graduate level. and possibly increasing. This paper outlines some of the problems that Chinese students appear to have when encountering law studies for the first time. cohort of students arriving from China to study in Australian universities.
TEACHING LAW TO CHINESE STUDENTS: SOME REFLECTIONS David Parker Victoria University
There is a large.
identify the method that seems to optimise its application.2.
LEGAL EDUCATION TODAY: TEACHING TO ENGAGE LAW STUDENTS Michael Blissenden University of Western Sydney
Legal Education is currently being reviewed throughout Australia. A number of Law Schools have undertaken or undertaking Curriculum Reviews concerning the content and 73
. rather than reflective and independent scholars. those who do commercial studies. The paper outlines some of the traditions of Confucian education and ponders on whether this impacts on particular student’s mode of learning. The means by which law is actually taught and assessed appears to be a challenge for many of these students who may never have encountered a problem based style of teaching. quite often have to complete some form of law type studies as part of their course.
provides a basis for classroom discussion.
. Within that framework there has been a focus on the manner in which to teach law units of study within and outside the classroom including the use of service learning programs. that the study of case law is required. where there is a need for an understanding of the nature of a trust.
At the University of Western Sydney Law School such approaches have been undertaken and applied to the teaching of Revenue Law to final year students. Students are allocated particular tasks to explain aspects to the rest of the class and this adds a further dimension to the engagement of students. For other topics such as the taxation of trusts. especially later year students in the classroom. For instance for the core areas of income and deductions.
This paper will review the success of this teaching methodology and provide a platform that may be utilised in other law units in a LLB degree program. where the legislative framework is very general. explaining the factual scenarios and policy processes behind the litigation between the parties. This in itself is not new but it is considered that only the seminal cases should be studied by students so as to appreciate the underlying legal and policy analysis that led to the decisions by the courts. Students have been asked for feedback to this storytelling process through questionnaires and the data from this exercise will be discussed. I have been involved as the unit co-coordinator and lecturer of Revenue Law for a number of years and have realised that different teaching approaches need to be taken for different topics throughout the unit. a more structured lecture approach may be more appropriate.delivery of their law programs. In that regard the use of techniques such as storytelling by students. In particular the use of teaching methodologies and approaches from other disciplines have been utilised in an attempt to engage law students. Revenue Law is generally accepted by students and academic staff alike that the unit of study is a difficult one. At the University of Western Sydney Revenue Law is a compulsory unit of study so the student cohort covers all those studying the LLB degree program.
Podcasts are one such form of technology.
The Contracts Vignettes are multimedia video presentations that provide focus and direction for students in the first year subjects Contracts A and Contracts B at QUT since semester 2. PROBLEM BASED LEARNING AND PUBLIC POLICY.THE CONTRACTS VIGNETTES: COST-EFFECTIVE
PODCASTING PRODUCING QUALITY
LEARNING OUTCOMES IN FIRST YEAR CONTRACT LAW
Des Butler Queensland University of Technology
Technology offers the opportunity to facilitate learning experiences for both internal and distance students in a way that traditional lectures cannot.
GOING TO THE MOVIES: LEGAL EDUCATION. In this paper we explore the use of popular culture movies to begin the PBL experience for students. These issues include the cost of software associated with large scale usage. There is a also degree of scepticism concerning the need for podcasts with at least one study showing that only twenty per cent of students currently uses or wishes to use portable devices for study. The Interview (1998) 75
. Two films. in a method readily transferable to other subject areas and disciplines. 2006. Kathy Douglas & Michele Ruyters RMIT University
Problem Based Learning (PBL) is a learning and teaching strategy particularly well suited to legal education. post graduate and practical training programs to identify problems and collaboratively and creatively provide solutions. We reflect upon teaching at RMIT University in Evidence and Civil Procedure where we have utilised films to provide scenarios for problem solving. and present the overwhelming positive results of a survey of students using them. This paper will examine the Vignettes and their method of production. but a number of issues hinder their large scale utilisation. They were produced utilising ready-to-hand software for minimal cost. It is a learner centred approach that assists law and legal studies students in undergraduate.
In particular. In the civil jurisdiction the film A Civil Action raises concerns regarding the preservation of the environment and legal regulation. However. little guidance is currently available regarding how critical thinking relates specifically to legal education and legal practice. students would develop better reasoning and arguing skills and be better practitioners.and A Civil Action (1998). Students engage with the need to deal with community concerns
through such means as public policy mediation. and whether and how critical legal thinking might be assessed. have provided scenarios for students to solve and provided the opportunity for students to understand and have empathy with the characters through experience of storytelling. students able to think and act independently would be more attractive as employees. For example. grounded in theory and oriented towards legal and social reform. in this paper we explore the way that the two films have provided a focus for holistic problem solving for students and importantly raised public policy issues. students able to think critically would be more aware of social injustices and deficiencies in the legal system and be more willing to participate in law reform. vocationally relevant. This paper will draw upon scholarship and expertise from the
disciplines of law and education in order to (1) construct a definition of ‘critical legal thinking’ that is doctrinally sound. and (2) identify the best methods for assessing such a form of critical legal thinking. 76
. Students can engage with public policy dilemmas such as the competing rights of the accused and the protection of society.
DEFINING AND ASSESSING CRITICAL LEGAL THINKING Nick James University of Queensland
The learning of critical thinking skills by law students seems to be a desirable outcome of legal education for a variety of reasons: students would engage with the subject matter of the degree with more interest and enthusiasm. the film The Interview raises concerns
regarding criminal justice policy and the rights of the accused. what level of ‘criticality’ is appropriate for law students. This policy tension is particularly relevant given recent initiatives in Australia and globally to deal with the perceived threats of terrorism.
The paper will explore the fundamental tension between the desire to provoke a critical attitude within students and the need to assess critical thinking ability against a set of defined criteria. and improve effectiveness and efficiencies by reducing lecture time. and construction of the best definition of critical legal thinking.The construction of a definition of ‘critical legal thinking’ will be achieved in four steps: identification of the relevant justifications for teaching critical legal thinking. engaged and interactive learning experiences for students. and identification of the best methods for assessing critical legal thinking. 77
. identification of the criteria for judging definitions of critical legal thinking. It is anticipated that the resulting definition will embrace not only the ability to construct and analyse legal arguments but also an ability to recognise implicit power relationships in legal situations and a proclivity to question authority in all its forms. identification of the possible definitions of critical legal thinking. This transition may be achieved through the development of blended learning environments (which make the best use of face-toface learning) and online learning formats (which may be supported by a multitude of courseware) so as to provide increasingly flexible.
CHALLENGES OF ADOPTING NEW INTEGRATED TECHNOLOGY STRATEGIES
INTEGRATING E-LEARNING AND BLENDED LEARNING INTO EXISTING LLB UNITS John Juriansz University of Western Sydney
Many law schools are considering the utility of adapting their “traditional” modes of classroom delivery to include increasingly flexible modes of teaching and learning by trialling new integrated technology strategies. identification of the criteria for judging methods of assessing critical legal thinking.
The construction of the best method for assessing critical legal thinking will be achieved in three stages: identification of the possible methods for assessing critical legal thinking. Effective strategies are expected to enhance student
engagement and learning through online activities within the curriculum.
Many seasoned lecturers may doubt their ability to learn and manage new electronic technologies.However. CDROM and hard-copy information. a project to provide online.
LIFELONG LEARNING: ENGAGING STUDENTS AND TEACHERS IN LEGAL EDUCATION Claire Macken & Pamela Mulready Deakin University
This paper introduces a project called ‘Law E-ssentials’. to first year law programs. For institutions which have adopted a strategy on the adoption of e-learning technologies. penultimate and final year law students to law alumni. Law E-ssentials recognises that law studies in higher education is part of a ‘lifelong’ learning cycle. resources and links to communities for both law students and law teachers. mid-year law.
For law students. beginning with pre-entry into law (either by school-entry or individual inquiry). the challenge of fostering and encouraging the support and uptake by the academic stakeholders may be enhanced by the: •
Development of a system of E-learning and Blended Learning mentorship and training within the law school.
Establishment of a pilot project for the staged introduction of blended and e-learning elements into the teaching practice of the law school. and
Establishment of feedback and evaluation systems to measure the success and failures of the various phases of the staged process so as to ensure the most beneficial results. and query whether workload agreements can accommodate these changes. Law E-ssentials provides skills sets for each of these 78
. there can be resistance to the introduction of new integrated technology strategies into a course. may question whether the quality of teaching and learning experiences will be enhanced by these new approaches.
as well as providing the opportunity for law teachers to engage with literature on best teaching practice in law. Law Essentials has built key resources to support the development of skills. This paper considers the rationales of the systems. note-taking. In New Zealand. and for both to engage with the legal profession. Online learning communities. legal problem solving through fact analysis. It 79
. such as anonymity of scripts and “double” or “second” marking. the Council of Legal Education appoints a judge or eminent practitioner to approve the examination paper in “core” courses and requires that the Law Schools exchanges a sample of scripts in all LLB courses to ensure standards are maintained. Law E-ssentials is developing and sharing practical hints.students recognising the need for flexible and lifelong learning. Law E-ssentials is also developing ‘social software’.
EXTERNAL EXAMINERS – A MEANS OF QUALITY ASSURANCE? Ken Mackinnon The University of Waikato
This paper looks at the systems of external examiners in UK and NZ law schools. such as time management and organisation. the roles of the examiners.
To fully engage both law learners and law teachers. reading and listening skills. While there are other mechanisms for increasing the quality of marking. the QAA in the UK places great emphasis on the external examiner system. law teachers to engage with each other. where they fit into overall assessment. To do this. and tips for law teachers. for both law students and law staff and linking to the legal profession is seen as critical to create a vibrant law community for law students to engage with each other. and the benefits and drawbacks of the two approaches. legal writing and research skills.
For law teachers. It is envisaged that the development of online communities could create both an intra-University and cross-institutional professional environment for those involved in teaching and learning law. instruction in practical legal skills and much more.
many of whom did not have an academic background. Testing is a science.
. in particular the use of entrance tests. The success of the ALSET students is also supported by the fact that almost half gained a GPA of 5. The paper aims to provoke discussion with Australian colleagues about whether Australian law schools might benefit from such a system.raises some questions about their practical effectiveness as quality assurance mechanisms. and analysis that indicates that an increase in ALSET scores is accompanied by an increase in the percentage of higher grades. discussing the diverse range of current practices. and considers whether there are equally robust alternatives.
This paper will focus on some of the issues relating to student selection into Australian Law Schools.5 or higher.
The study found that those who sat for ALSET have performed comparably in their first year of study with those selected by ENTER scores. student admission and management are being proposed by DEST. An assumption underpinning the policies is the need to ensure a high quality intake of students.
The main discussion relates to the results of a study which examined the relationship between the Australian Law Schools Entrance Test (ALSET) and performance in first year Law studies at an Australian university. Policies regarding university structure. administration. both major political parties and from within the sector itself. funding.
STUDENT SELECTION IN A TIME OF CHANGE Susan Nankervis Australian Council for Educational Research
Higher Education is currently under a political spotlight and poised for significant changes in coming years. and a valid selection test should deliver the right students who can succeed in the course. The test was used for mature-age applicants.
Students appreciate when academics use video/DVD material as a teaching aid. At present the range of videos available to assist in teaching law (content and skills) is limited. The presenter is presently piloting the use of YouTube-style audio-visual recordings teaching and learning both content and skills in law. The ‘videos’ may be used in face-to-face teaching. unregulated. and it is possible that adopting the genre of sites such as YouTube may be an effective tool for teaching law. In their spare time. videos that may be designed and created for specific teaching tasks. and may be edited and updated quite easily for future use.youtube. amateur movies. The YouTube genre refers to the famous website www. from the exhibitionist to the educational.
PILOTING THE USE OF THE YOUTUBE GENRE AS TEACHING AIDS IN LAW Michelle Sanson University of Technology. It is essentially about an unstructured. and it is also sound from a teaching point of view in extending the adult concentration span through regular varying of the teaching activity. and podcast recordings for their personal amusement. and that those students selected by ALSET have the necessary skills to justify their place in the course. effective solution to teaching videos. and will present her experience to date as well as an example video.The results illustrate how performance in tertiary study is underpinned by generic skills. unpolished broadcasting of anything a person wants. webcam shots. recent school leavers seek out music downloads. flexible. Using a handycam. and a laptop with a DVD burner. As a valid instrument. or posted on WebCT or even YouTube itself. purchase videos are inflexible and date quite quickly. Microsoft Moviemaker. Adopting a YouTube genre may be a low cost. The evidence confirms that the test has successfully identified students who are likely to have the ability to cope with tertiary level studies. the test adds value to a range of selection models in a time of great change for Australian universities. Further. where amateur footage is posted online on a range of subjects.
The placements have also provided students with rare opprotunities for team work. In the absence of a clinical program. aims and motivation for studying by 82
. By providing students with rare opportunities to work on legal policy papers. students have embraced the placements as rare opporuntities to gain practical work experience. Participating oranizations have been grateful for the additional researchers and exciting joint projects are being discussed. by a recent decrease in the number of applications for entry. by concerns as to whether the initial access and equity basis of the distance mode has been maintained. which had lay dormant in a legal problem solving focused law curriculum. by anecdotal student feedback. on the students. The timing of the evaluation is influenced by increased competition in the distance sector. This paper outlines and evaluates the experience and potential of placements in the law school curriculum. and by rapid changes in technology and developments in online teaching and learning.PLACEMENTS: MUCH MORE THAN AN ALTERNATIVE FORM OF ASSESSMENT Daniel Stepniak The University of Western Australia
For the past eight years students in my elective units “Law and Religion” and “Law and Contemporary Social Problems” have been encouraged to undertake research and writing for outside organisations on topics related to the scope of the units. In stage one data was gathered by means of a questionnaire administered to current distance students across all levels of study. the placements have unearthed students with exceptional policy skills.
TOWARDS BEST PRACTICE IN DISTANCE EDUCATION Penelope Watson & Graeme Wiffen Macquarie University
This paper reports on preliminary findings of a grant funded study undertaken as stage one of the evaluation and improvement of the undergraduate distance program in Law at Macquarie University. They have embarked on such placements in lieu of writing standard legal research papers. their background. The placements have also discolosed a number of unforseen benefits.
This experimentation has provided highly positive results. The purpose in using the technology has been to increase interaction with distance students and in larger class settings. conforming to the same high pedagogical standards which would be expected for campus based delivery. the Business Law Group at Massey University has experimented with the use of technology. and the ability to submit assignments and receive feedback online. as well as information on resources. administration. optional quizzes which provide immediate feedback for them to measure their own level of progress. The question for teachers is whether meeting this demand will actually produce increased learning benefits that compensate for the investment spent in introducing the new technology. and comparable programs elsewhere in Australia identified. A review of the literature on distance education has been partially completed. OHPs and even whiteboards have been consigned to the museum of teaching tools of the past. The goal of the study is to develop recommendations for improving distance delivery at Macquarie Law. Internal students use personal response systems to answer multi-choice questions in lectures and tutorials. and take part in real-time online tutorials regardless of their location. resulting in close to 83
THE USE OF TECHNOLOGY TO CREATE AN INTERACTIVE LEARNING ENVIRONMENT FOR INTERNAL AND DISTANCE STUDENTS Debbie Wilson & Feona Sayles Massey University
Blackboards. Distance students can access online audio lecture and PowerPoint presentations. assessment. and other aspects of the distance experience. Today’s students are attracted to new technologies and demand that lecturers utilise these to assist them in their learning.distance. Focus groups of staff and students will add to the data. and guidelines for best practice in the effective design and delivery of distance education. skills.
Course WebCT sites contain discussion forums for students to debate issues. Those not able to attend can view a replay of the tutorial at their convenience.
Over the past year.
A bottom-up approach was adopted starting with the development. The results of this exercise informed the formulation of the Course Outcome Statement and will further assist in other aspects of the Curriculum Review. From this data we have endeavoured to identify those outcomes that required more and/or less focus through the degree and in so doing ensure that the integration of outcomes in the degree is progressive and comprehensive.
DEVELOPING COURSE OUTCOMES SCHOOL Normann Witzleb & Natalie Skead
AND AN INTEGRATED
The University of Western Australia
In 2006. the UWA Law School embarked on a Curriculum Review of its LLB degree. for example.100% class participation and instant feedback for lecturers on the classes’ level of understanding.
. refinement and statement of student learning outcomes at the level of individual units and progressed to the identification of student learning outcomes at the various year levels. and provides observations as to the benefits to students. the formulation of a Course Outcome Statement and the mapping and integration of the outcomes appropriately and progressively across the degree. the introduction of new core units and the alignment of assessments with outcomes at unit and year level.
This paper discusses the use of these technologies in several law papers offered by Massey University. problems faced by teachers using the technologies as well as the resources required to implement these forms of teaching. This paper shares the
process adopted in undertaking this aspect of the review and describes the results reached. Central elements of the review were the identification of graduate outcomes.
LOCAL MAGISTRATES AND THE INFORMAL LAW 1700-1833 Shane Sullivan The University of Queensland
“When eighteenth-century prosecutors brought indictments for assault. watching. This process will now be explored in terms of the impetus for such an informal resolution. “Indictment for Fun and Profit: A Prosecutor’s Reward at Eighteenth-Century Quarter Sessions”. or to refer the matter to the Quarter Sessions or the Assizes. riot. p507
This paper seeks to examine the role of the Kentish Justice of the Peace not as an officer to formally decide a complaint (if competent to do so). (1999) Law and History Review.
VIOLENCE. 3. apology from the defendant.” N. Within this context it will consider the reasons why the Senate never exercised its powers under Standing Orders to permit the introduction of similar legislation within the Commonwealth Parliament.LEGAL HISTORY
PRIVATE BILL LEGISLATION – HAS THE DEVELOPMENT OF PRIVATE ACTS OF PARLIAMENT IN AUSTRALIA HAD THE SAME IMPACT AS SIMILAR LEGISLATION IN THE UNITED KINGDOM? David Barker University of Technology Sydney This paper will examine the development of private Acts of Parliament with particular emphasis on their influence in the development of local government functions such local services as lighting. 85
.It will compare these aspects of private bill legislation with those introduced in Australia under the auspices of State and Territory legislation. the tools used by Kentish justices in the pursuit of such a settlement. but as the focal point for an informal settlement of a criminal complaint. or less frequently. or other non-felonious offences against the person. their goal was not punishment of the defendant. Landau. but instead the extraction of payment. street paving and cleansing in the United Kingdom .
and the typicality or otherwise of this process. Finally. is based largely on self directed learning and spans the full degree course. The paper does not purport to be an erudite exposition. but rather a practical insight into how things are done at Otago.
This paper tracks the history of the programme and the thinking behind the current structure and describes its various components. and its broader significance to the question of the motives of eighteenth and early nineteenth-century prosecutors of petty crime. but not a points weighted paper.
. and the impact of this issue upon how work in the field is conducted.the nature of the offence which formed the subject of the complaint. It is designed to complement the learning style and structure of the Otago LLB. It is currently a compulsory component of the LLB degree. the nature of the restitution involved in such a settlement.
LEGAL RESEARCH AND COMMUNICATION LEGAL RESEARCH AND WRITING OTAGO STYLE Judith Ferguson University of Otago
Over the last ten years the Legal Research and Writing Programme at the Otago Law School has expanded and strengthened. Students complete programmes in legal writing skills and in legal research skills and then apply these skills in assignments set in individual subject areas. I will offer some conclusions on the role and the nature of "making-up". the factors which determined the exercise of this discretion.
The CRA examined establishes some standards for the genre. However it is only when they are faced with a fact situation where they are required to apply the law that their understanding is tested. at the basis of each research grant application is the research proposal. The success of these depends on many factors – the viability of the intrinsic research concept.THE RESEARCH PROPOSAL WRITING GENRE Terry Hutchinson
RESEARCH GRANTS: PERSPECTIVES
Queensland University of Technology
The current tertiary climate requires academics to constantly churn our research grant applications. This is especially a problem when the facts require them to “identify
. This often leads to a superficial or surface understanding of the legal principles. This paper examines the components of a standard Research Proposal including the Literature Review. The research proposal genre is a necessary part of training for academic writing. It also includes some reflections on considerations to be taken into account in writing a Criteria Referenced Assessment sheet.
USING WRITING AS A TOOL TO DEVELOP LEGAL REASONING SKILLS FOR LAW STUDENTS Victoria Lambropoulos Deakin University
This paper is motivated from a need to help law students diagnose their errors in thinking and understanding when studying law subjects. It is used widely in research higher degrees and masters units. the standard of other applications to name a few. the match between the granting body’s criteria for funding and the research objectives. However. They mistakenly think if they have spent long hours writing lecture notes that they should know the principles. Many students at this stage go blank if the facts are not simple or they are not similar to the tutorial problems which they have been given answers for. Law students spend much of the semester of a subject trying to consume the content of the law. This shows that students are concentrating on a transmission and
regurgitation approach to learning as opposed to a deeper understanding of the legal principles.
Students eventually should be able to develop the ability to diagnose thinking problems and not be so reliant upon the lecturer’s understanding or interpretation of the legal principles. ADMINISTRATION AND POLITICS
Lynn Du Moulin The Australian National University
This paper provides an overview of the role of lawyers in the development of public policy and notes that it may be a bigger role than is often realised. politics (but apolitical).
The paper considers some of the issues presented to lawyers who are legal advisers to policy teams (often the problem solver.
PRACTICAL LEGAL TRAINING
PUBLIC POLICY AND THE LAW: LAWYERS AT THE INTERSECTION OF
POLICY. LAW. The paper will examine the writing process as a tool to help students overcome their errors in thinking. Legal writing exercises are particularly useful because they require students to reveal their thought processes on paper.relationships among ideas on multiple levels of abstraction and use this information to solve problems” This is what they are required to do in legal practice as clients’ problems are rarely simple. administration and law and explains what this intersection comprises in each element. but not the policy adviser).
The paper positions lawyers at the intersection of policy. Many lawyers are generally unaware of the extent of their actual and potential role(s) and of how they can play roles in public policy and related processes. This can be used as an effective snapshot to examine what stage the students are at in their understanding of the legal principles they are required to study. It provides some insights into and examples of these elements.
The paper touches on the opportunities provided to law students (undergraduate and in practical legal training) to obtain the knowledge and skills to help them, as lawyers, understand and work in law as well in the other elements.
In doing so, the paper asks where these opportunities are best placed: in undergraduate law courses or in practical legal training courses? It asks what are courses currently considering and informing students in relation to legal hierarchies and law as passed.
Are they considering or considering in sufficient depth • • • What happens before the law is passed (policy concepts and development of public policy) Where lawyers / clients can participate in the process of public policy leading to laws, and What it means to be at that intersection of the elements – the roles, responsibilities and professional duties of the lawyer.
The paper briefly considers, as a case study example, teaching students in this area in a practical legal training course at ANU’s Legal Workshop. The paper concludes that information and training in this area has a place in legal education.
STUDENT SELECTION IN A TIME OF CHANGE Susan Nankervis Australian Council for Educational Research
Higher Education is currently under a political spotlight and poised for significant changes in coming years. Policies regarding university structure, funding, administration, student admission and management are being proposed by DEST, both major political parties and from within the sector itself. An assumption underpinning the policies is the need to ensure a high quality intake of students.
This paper will focus on some of the issues relating to student selection into Australian Law Schools, discussing the diverse range of current practices, in particular the use of entrance tests. Testing is a science, and a valid selection test should deliver the right students who can succeed in the course.
The main discussion relates to the results of a study which examined the relationship between the Australian Law Schools Entrance Test (ALSET) and performance in first year Law studies at an Australian university. The test was used for mature-age applicants, many of whom did not have an academic background.
The study found that those who sat for ALSET have performed comparably in their first year of study with those selected by ENTER scores. The success of the ALSET students is also supported by the fact that almost half gained a GPA of 5.5 or higher, and analysis that indicates that an increase in ALSET scores is accompanied by an increase in the percentage of higher grades.
The results illustrate how performance in tertiary study is underpinned by generic skills. The evidence confirms that the test has successfully identified students who are likely to have the ability to cope with tertiary level studies, and that those students selected by ALSET have the necessary skills to justify their place in the course. As a valid instrument, the test adds value to a range of selection models in a time of great change for Australian universities.
PLACEMENT IN PLT: A THOROUGHBRED OR JUST A HACK? Paul Rogers University of Western Sydney
This paper discusses original research being undertaken with a UWS College of Business community engagement seed grant into Australian lawyer’s and the benefit or the burden of undertaking the placement of a PLT student. I discuss what is the current published position of the state admitting authorities which are responsible for setting the 90
competency standard and compliance requirements for placement in practical legal training. Further, I discuss the role and compliance or otherwise of the providers of PLT throughout Australia in relation to placement. The paper will seek to identify any common ground between admitting authorities on placement, together with if there is any common ground by the PLT providers, in light of the movement to a national profession. Finally, the paper will address the urgent need for further research to examine the causes of satisfaction or other wise of the legal profession itself with placement.
KEY ASPECTS OF THE SUCCESSION ACT 2006 (NSW) Fiona Burns The University of Sydney
The Succession Act 2006 (NSW) received assent on 27 October 2006 but is still to commence operation. It is anticipated that it will come into operation in NSW by the end of 2007. The Act implements (with modifications) the recommendations of the National Committee for Uniform Succession Laws in respect to wills. These recommendations were endorsed by the NSW Law Reform Commission in Report 85 (1998) Uniform Succession Laws: The Law of Wills.
This paper will consider some of the key changes and innovations made by the Succession Act 2006 (NSW). Where appropriate, the paper will consider: • • •
the impact of the Act on the law prior to the implementation of the legislation; some important instances where the law in NSW differs from that in other states; and those amendments that may be regarded as either controversial or difficult to implement.
the 30-day beneficiary rule. Easements by implication. cover those easements that are based on common intention. alteration and revocation of wills for persons lacking testamentary capacity. extrinsic evidence. revocation of wills including the effect of marriage and divorce.
Prescriptive easements are easements that arose at common law due to a long established de facto enjoyment of a right over land. broadly speaking. as most ‘non-Crown’ residential and commercial land in NSW is regulated by the Torrens system. dispensation of formal requirements by the Supreme Court. necessity or are inferred or implied in favour of purchasers of land. It will be argued that significant statutory amendments to
. and dispositions of property to an unincorporated association.
AND IMPLIED EASEMENTS:
THEY HAVE A FUTURE IN THE
SYSTEM IN NSW?
Fiona Burns The University of Sydney
This paper considers the extent to which prescriptive and implied easements continue to exist in the law of NSW. powers of the Supreme Court to authorize the making.
Special attention will be paid to the operation of the Torrens system in NSW. prescriptive easements and (to a lesser extent) implied easements had been considered antithetical to the smooth operation of land law and the economic development of the state. It will be argued that even before the full impact and implementation of the Torrens system in NSW. The paper will discuss the initial impact of the Torrens system on prescriptive and implied easements and the opinions of early land law writers as to whether and to what extent such easements could co-exist within a title by registration system.Topics for specific consideration will include: wills made by minors. Relevant amendments to the provisions of the Real Property Act 1900 (NSW) will be tracked.
The courts have adopted a narrow definition of fraud and accordingly the fraud exception to indefeasibility has been “tightly policed” and it is only the most egregious examples of personal dishonesty that will constitute Torrens fraud. Williams v State Transit Authority of New South Wales  60 NSWLR 286.
Over the past few decades there has been an expansion in the scope of the in personam exception with the inevitable consequence of a corresponding erosion of the principle of 93
. a title which is immune from adverse claims other than those which are specifically excepted. This in turn has led to the indirect abolition of prescriptive easements in the Torrens system and cast serious doubt upon the ongoing efficacy of easements by implication. In the paper. that is. a registered proprietor’s title is also subject to the so called “in personam” exception which encompasses legal or equitable claims against a registered proprietor based on the personal obligations of the registered proprietor.
TAMING THE UNRULY IN PERSONAM EXCEPTION: AN EXAMINATION OF THE LIMITS OF
THE IN PERSONAM EXCEPTION TO INDEFEASIBILITY OF TITLE. and McGrath v Campbell  NSWCA 180 (7 July 2006) will be discussed.
This restrictive interpretation of the fraud exception serves to reinforce the paramountcy of the indefeasibility of a registered proprietor’s title.
Penny Carruthers The University of Western Australia
The effect of registration of an interest in Torrens land is to confer on the registered proprietor a title which is said to be indefeasible. the impact of two groundbreaking NSW Court of Appeal decisions. One exception to
indefeasibility is the fraud exception which renders a registered proprietor’s title defeasible where the registered proprietor was guilty of fraud in becoming registered.that Act near the end of the 20th century have severely circumscribed when easements may constitute exceptions to indefeasibility of title.
s 51AC. This paper will consider whether an extension to prohibit unfairness would better address conduct in retail leasing transactions which were the subject of criticism by the Reid Committee. had the impact on the conduct of retail leasing transactions as was generally anticipated. including retail leasing.
Although the Reid Committee recommended the insertion of a provision prohibiting unfair conduct in small business transactions. the resulting provision. arguably. In answering the question posed.
UNFAIRNESS IN RETAIL LEASING – AN EXAMINATION OF TERMS OR CONDUCT? Eileen Webb The University of Western Australia
In May 1997. The question that arises is. The Reid Report made numerous recommendations aimed at addressing instances of unfair business conduct identified by the Committee. has this development of the in personam exception become too unruly?
The purpose of this paper is to identify the generally accepted limits of the in personam exception and to critically analyse these limits in the light of selected cases. Finding a Balance – Towards Fair Trading In Australia (the Reid Report). an unconscionability standard was subsequently adopted. and its state and territory analogues. and 94
. To date.
Two alternatives will be examined: •
the extension of unfair contract terms legislation to encompass retail leases. The Committee had examined an array of instances of unfair conduct in relation to small business transactions. have not. the House of Representatives Standing Committee on Industry. the paper will also consider the recent decision of Farah Constructions Pty Ltd v Say-Dee Pty Ltd  HCA 22 in which a unanimous High Court firmly bolted the stable door on the recognition of one potential in personam claim.indefeasibility. Science and Technology released its report.
the prospect of an extension to small business leases raises concerns regarding the impact such legislation may have on the conventional course of commercial transactions. However. Such a development would seem to address both procedural and substantive unfairness and. is presently unachievable. The ongoing efficacy and validity of such easements was not a problem when the main or predominant form of land title was old system or common law title. the Torrens system whereby the title of or an interest in land is conferred by the registration process has effectively abolished prescriptive easements in NSW and thrown into some doubt whether implied easements have a future role to play in the land law of that state. such a development would provide an avenue for relief in instances of substantive unfairness. arguably. it remains controversial and is presently under consideration in yet another inquiry. On the other hand. however.1 of the Reid Report. legislation addressing unfair contract terms in consumer contracts has gained traction in recent times. While the prospect of a provision prohibiting unfair conduct in retail leasing is not new. something which. the implementation of a title by registration system.
. particularly s52 and Part IVA.
AND IMPLIED EASEMENTS:
THEY HAVE A FUTURE IN THE
SYSTEM IN NSW? (OUTLINE OF PRESENTATION)
Fiona Burns The University of Sydney
This paper considers the extent to which prescriptive easements and implied easements will continue to operate in NSW.
The second alternative adopts Recommendation 6. with the focus on procedural issues and an onerous unconscionability standard. the Productivity Commission’s investigation into the market for retail leases in Australia.
In relation to the first alternative. overlap with some of the other provisions of the TPA.•
the inclusion of a provision prohibiting unfair conduct in the TPA.
Two cases have highlighted the difficulties of utilising prescriptive easements and implied easements within the Torrens system in NSW: Williams v State Transit Authority of New South Wales and McGrath v Campbell. They will be discussed at the end of this paper.However. the law remains unclear and inconsistent. the Torrens system whereby the title of or an interest in land is conferred by the registration process has effectively abolished prescriptive easements in NSW and thrown into some doubt whether implied easements have a future role to play in the land law of that state.
AND IMPLIED EASEMENTS:
THEY HAVE A FUTURE IN THE
SYSTEM IN NSW?
Fiona Burns The University of Sydney
This paper considers the extent to which prescriptive easements and implied easements will continue to operate in NSW. Two cases have highlighted the difficulties of utilising prescriptive easements and implied easements within the Torrens system in NSW: Williams v State Transit Authority of New South Wales and McGrath v Campbell. the implementation of a title by registration system. that is. a title which is immune from adverse claims other than those which are specifically excepted. The ongoing efficacy and validity of such easements was not a problem when the main or predominant form of land title was old system or common law title. the law remains unclear and inconsistent.
TAMING THE UNRULY IN PERSONAM EXCEPTION: AN EXAMINATION OF THE LIMITS OF
THE IN PERSONAM EXCEPTION TO INDEFEASIBILITY OF TITLE
Penny Carruthers The University of Western Australia
The effect of registration of an interest in Torrens land is to confer on the registered proprietor a title which is said to be indefeasible. One exception to 96
. However. However. They will be discussed at the end of this paper.
This restrictive interpretation of the fraud exception serves to reinforce the paramountcy of the indefeasibility of a registered proprietor’s title.indefeasibility is the fraud exception which renders a registered proprietor’s title defeasible where the registered proprietor was guilty of fraud in becoming registered. The question that arises is.
. The courts have adopted a narrow definition of fraud and accordingly the fraud exception to indefeasibility has been “tightly policed” and it is only the most egregious examples of personal dishonesty that will constitute Torrens fraud.
Over the past few decades there has been an expansion in the scope of the in personam exception with the inevitable consequence of a corresponding erosion of the principle of indefeasibility. In answering the question posed. a registered proprietor’s title is also subject to the so called “in personam” exception which encompasses legal or equitable claims against a registered proprietor based on the personal obligations of the registered proprietor. has this development of the in personam exception become too unruly?
The purpose of this paper is to identify the generally accepted limits of the in personam exception and to critically analyse these limits in the light of selected cases.
However. the paper will also consider the recent decision of Farah Constructions Pty Ltd v Say-Dee Pty Ltd  HCA 22 in which a unanimous High Court firmly bolted the stable door on the recognition of one potential in personam claim.
It compares the ATO’s Code of Settlement Practice with the approach taken by the New Zealand courts.
In a series of judgments culminating in Accent Management Ltd v CIR.
It is a fundamental constitutional principle that Parliament imposes tax while the Commissioner merely has responsibility for collecting it.REVENUE LAW
THE POWER TO SETTLE TAX DISPUTES – AN EXAMPLE OF PUBLIC POLICY IN PRACTICE Mark Keating The University of Auckland
This paper examines the various decisions in Australia and New Zealand upholding the Commissioner’s right to settle tax disputes. Finally it suggests how the power to settle tax disputes may best advance the interest of both the Revenue Authorities and the taxpayers involved. since 1991 the Australian Federal Commissioner of Taxation has recognised the ability to negotiate settlements of tax disputes based on the “good management rule”. New Zealand courts have confirmed the Commissioner’s power to settle tax disputes on a compromise 98
. the Commissioner argued he was not permitted to settle tax disputes on an “unprincipled basis”. This policy allows the ATO to take account of public policy. Section 1 of the Bill of Rights Act 1688 (UK) stipulates that the Commissioner has no “dispensing power” allowing him to waive the collection of tax properly imposed by legislation.
By contrast the New Zealand Commissioner of Inland Revenue was slow to take advantage of the power to settle tax disputes.
Despite that principle. the allocation of scarce resources and litigation risk to settle tax disputes on a compromise basis. Initially ignoring legislative amendments specifically granting him “care and management” over the collection of taxes.
basis. but the uses of the TFN system were very quickly expanded so as to increase the efficiency of Government departments. It arose out of a policy of reducing tax avoidance. In 2007. and the assurances that were given regarding its uses. why initially it received much support but was then withdrawn. and whether there is a need for an Access Card. resulting in unnecessary litigation. Why the TFN system was introduced.
A CHANGE IN POLICY: LESSONS TO LEARN FROM THE TAX FILE NUMBER SYSTEM Christine Peacock Monash University
The introduction of the Tax File Number (TFN) system as we know it now was a topical issue that sparked much interest almost twenty years ago. unlike the ATO. These decisions bring IRD into line with ATO practice by allowing it to make “rational decisions” over how tax is collected and which disputes should be pursued. What lessons are there to learn from this system?
This paper will touch on: • • • • • The policy intent of the 1980s Australia Card proposal.
. This absence of policy has caused uncertainty and frustration for taxpayers. the TFN system and the implications that it has on privacy are worth considering. after the fall of the Australia Card proposal. and Where Australia is going in terms of identity and registration systems. the IRD has been slow to explain the grounds upon which it will settle disputes or establish any procedures. The function creep that has resulted. as the Australian Government considers whether Australia should have an Access Card. A limited discussion document in 2005 on its power to settle disputes has never been confirmed. The underlying policy intent of privacy protections and whether these protections are effective in protecting TFN holders.
The Paper will conclude by examining some important tax and public policy implications of the use of trusts in both Australia and the United States.
The next part of the Paper will examine in more detail how and why trusts are used in Australia.
In terms of any examination of the evolution of trusts.Darwinian Evolution of the Taxation of Trusts: A Comparative Analysis Dale Pinto & Stewart Karlinsky Curtin University of Technology
This Paper will undertake a comparative analysis of the evolution of trusts in Australia and the United States. including a brief examination of how trusts are used and how many trusts file tax returns. While the concept of a trust is well understood in both
jurisdictions. A comparative analysis will be undertaken in the United States context. This will provide an important context and backdrop to the ensuing discussion and analysis. it will be shown that the way trusts have been used in a commercial and taxation law context is quite different in the United States as compared with Australia.
showing how similar tax outcomes can be arrived at without using the technique of a trust.
The Paper will commence by examining the American and Australian experiences with trusts. Following this. focusing specifically on some of the taxation implications of the use of trusts in Australia. the British roots to the concept of a trust are important and will be analysed next in the Paper. a discussion of the United States trust attributes will be undertaken.
a view will be expressed on the question of whether the legislative regime reflects public policy considerations unique to New Zealand or would provide a model for the development of indigenous communities in other countries.
The paper also discusses the administrative practice of Inland Revenue under the special tax regime. Maori Organisations.5% applicable to Maori authorities encourages greater commercial development of the asset base held by these organisations which was estimated at being worth approximately $9 billion in 2001. The lower tax rate of 19. which often administer large blocks of farmland or other assets communally owned by Maori.
The author argues that the extensive public consultation and public policy analysis undertaken by the government and the revenue authority before passing of the Taxation (Annual rates. and other Maori entities established under the Waitangi Treaty settlement process administering assets. Taxpayer Compliance and Miscellaneous Provisions) Act 2003 have resulted in a set of tax rules that appropriately addresses the particular land and other asset ownership structures and cultural practices unique to Maori authorities.THE TAXATION OF MAORI AUTHORITIES IN NEW ZEALAND: A UNIQUE REFLECTION OF
LAW AND PUBLIC POLICY WORKING TOGETHER?
Audrey Sharp The University of Auckland
This paper outlines the historical background of the Maori authority tax regime in New Zealand from its introduction in 1939 to the present day and the justification for the unique tax regime applying to Maori authorities. Maori authorities subject to the specific taxing regime include various statutory organisations and trusts. It also acknowledges that the majority of Maori owners receiving distributions from Maori authorities are on low income. Finally.
Since July 2000. there have been severe structural problems in bringing the new technology into the class room. Largely this has been in relation to our cross discipline students [or business students] rather than from law students. Taxation Law is seen as a “service subject”. there has been a marked growth in the number of students in our taxation law courses. with the ATO itself moving towards e-returns and the internet as a client interface.
. This is largely true. We are still seen very much as a chalk and talk subject. There has been recent criticism from the government that we have been supplied with the technology but have failed to adopt it in our courses. for the first time. It happens to have been at a time of tremendous change to the tax system and increasing legislative innovation.
With changes to the Corporations Law and the Financial Services Reforms. The need to adopt innovative techniques in teaching taxation law has never been higher. The Law Faculty’s have still to recognise the importance of taxation law and it is not included in the Priestley 11 [or is it 12]. the means are at hand for all this to change.
However. The professional advisor is required to know each client as an individual and to provide carefully considered advice from many aspects (including tax )and for all relevant stakeholders. we can no longer afford to ignore the need to educate our students to work in a multi disciplinary environment.TRAINING
TEACHING TAX LAW
YEARS AT UTS: A PRECIS William John Taggart University of Technology.
This paper will explain what is being done and what is planned to embrace technology in the teaching of taxation law at UTS and to prepare students for their professional life in the 21st Century.
the lack of a clear meaning for goodwill is a serious limitation of the tax system. It traces the development of the concept of goodwill through the legal cases and it attempts to reconcile the perspectives of goodwill to be found in the disciplines of law. as they are brought to bear on taxation. the ATO apparently argued in its written
submission to the Full Federal Court that the fact that there were single judge decisions
. this issue came to a head in FC of T v Indooroopilly Childcare Services (Qld) Pty Ltd 2007 ATC 4236. There should be a clear understanding of what is meant by the term ‘goodwill’ in a tax context and this paper will consider what the term means in Australia.
Recently. and in which there are several contexts in which taxpayers deal with intangible property in order to obtain optimal benefit from the tax laws. including goodwill. accounting and economics. It will be argued in this paper that a clear meaning of goodwill does not currently exist under tax rules. In an economy showing signs of the increasing importance of intangible property. Thus it analyses the legal cases and the accounting standards dealing with goodwill and it explores some of the economic literature that deals with goodwill.THE CURRENT MEANING OF GOODWILL IN AUSTRALIAN TAX Michael Walpole The University of New South Wales
It is critical to a tax system which includes as many rules relating to goodwill as Australia’s for there to be a clear understanding of what goodwill is and of when an asset is goodwill or something else.
THE ATO IS (NO LONGER) A LAW UNTO ITSELF Robin Woellner & Ms Julie Zetler James Cook University & Macquarie University
Tax advisers and others have complained from time to time that officers of the Australian Taxation Office on occasions decline to apply decisions of single judges of the Federal Court with which they do not agree. In that case.
indicating in effect that the only choices for the ATO were to follow single judge Federal Court decisions. or seek to have Parliament change the law (the ATO in its Impact Statement subsequently indicated that it had been “unaware that it could have sought a declaration from the court” and was now seeking advice on this point).on the definition of a particular aspect of a “fringe benefit” did not mean that the Commissioner was bound to follow those decisions as against taxpayers who were not party to those decisions.
When challenged from the bench that “a proposition … that the Commissioner does not have to obey the law as declared by the courts until he gets a decision that he likes is astonishing” (per Edmonds J. or else either take “other proceedings” such as declaratory orders.
Later. and that the ATO had used the private ruling (which had led to the litigation now before the Court) to have the first instance decision reconsidered by the Full Court. in the form of the Australian Taxation Office … ignoring the views of the [Federal Court]”.
The Full Court was scathing in its criticism of this perceived approach by the ATO. Allsop J (Stone and Edmonds JJ agreeing). indicated (obiter) that “taxpayers appeared to be in the position of seeing … the executive branch of the government. Allsop J observed that: “There was some inferential suggestion in argument that the [Commissioner] was somehow bound by legislation (not specifically identified) to conduct the administration of the relevant statute by reference to his own view of the law … rather than by following what the courts have declared…”. Counsel for the Commissioner submitted that this had not been intended as a general proposition. 4255).
. and that it:
“… is only in very confined circumstances where the Commissioner would not follow a decision of a single judge of the Federal Court”.
The Full Court was highly critical of this approach.
The Commissioner’s submissions. there is no general declaratory power which the ATO could use to clarify the law. and merely “a means of having the matter properly and fully debated at an appropriate level in the Judiciary” . the Indooroopilly case raises issues of critical significance in defining the boundary between the respective roles and powers of the executive and judiciary in Australia.
On the other hand. And through 105
.Not surprisingly. powerful. mythological. or the space in which property exists. we interact with others and the world around us—space—through some form of property—private.
Several have argued that the ATO’s approach subverts the rights of taxpayers under the rule of law (Robertson. the Full Court’s comments in Indooroopilly have generated considerable vigorous debate. Yet modern property theory seemingly
overlooks the place. Davies argues that the ATO’s approach was proper. common. property structures everything that we do. structures our relationships with others. and the Court’s comments. and goes to the core of what is necessary to achieve proper self-development. It defines the control that we have over our own bodies. and emotional hold on our imagination. operates. In short. are therefore of central importance to Australian tax jurisprudence (and beyond).particularly as. rhetorical. or public. At every moment of life.
PROPERTY AND LIFE:THE IMPORTANCE OF THE SPATIAL DIMENSION Paul Babie The University of Adelaide
From earliest childhood property acts as a socio-cultural symbol maintaining a central. and has meaning in people’s lives. in his view. both for and against the ATO approach. and are accordingly analysed in detail in the Paper. Bender).
However. create.property we structure. Part III argues that that this re-structuring is important because it reveals the interwoven complexity to and inseparability and interdependence of the ontological elements of property. and space (both physical and socially constructed). And. society.
MODEL ADVOCATES OR A MODEL FOR CHANGE? Francesca Bartlett The University of Queensland
The broad context of the paper is the continuing debate within feminist legal scholarship (and the profession generally) as to how best to answer to the question: why is it that women enter the profession in equal numbers to men. there is no agreement as 106
. and how it is necessary to achieving ‘spatial justice’. This has implications for using property as a vehicle for achieving justice. giving space an explicit role in defining what property is. but in an incomplete and inexplicit way. because we are part of it. Part I of the paper uses the work of urban sociologist and planning theorist Edward W Soja to argue that human life comprises three components: history. and produce both physical and ‘social’ spaces.
This paper argues that property theory does say something about space. when it exists. over time we continuously alter and re-structure. A re-assembly of what we already know about property reveals the implicit role of space in property theorising and its importance in understanding what property is. physical and social space also interacts with us and with property. and re-produce those physical and social spaces. how it is central to and affected by human life. which has occupied feminists since Carrie Menkel-Meadow’s essay ‘Portia in a Different Voice’. Part II uses Soja’s ‘ontological trialectic’ to re-assemble what we already know about property. It is difficult to support the argument that it is ‘just a matter of time’ before women will assume an equal status in practice. This re-structuring requires us to say something about the constituent elements of human life in society—social life. re-create. yet are more commonly found in the lower ranks of the profession? This question. has produced many different answers.
Given that prostitution is often referred to as one of the oldest professions it is unsurprising that the question of how to best to regulate the sex industry.
THE LICENSING MORALITY?
SEX WORK: REGULATING AN INDUSTRY OR ENFORCING PUBLIC
Thomas Crofts & Tracey Summerfield Murdoch University & The University of Western Australia
In late 2006 the Attorney General of Western Australia announced that the State Government would “investigate reforms to Western Australia’s prostitution laws in a bid to decriminalise the world’s oldest profession. the paper will refer to recent data on the status of female barristers.to the deciding factors that account for the gendered disparity in status. but has ‘tended to be unproblematically defined in masculinist terms’ which reflect and sustain the dominant legal culture. if at all. the paper will discuss the ‘merit principle’ which is commonly relied upon as the ‘fair’ basis for promotion within the profession. the speaker’s interviews with female barristers and the substantial body of literature relating to the implementation of affirmative action policies in Australia and internationally. In order to evaluate the effectiveness and the desirability of such a policy. It will draw on the work of Margaret Thornton who has argued
persuasively that ‘merit’ is not a value neutral concept as it is portrayed in legal discourse. In particular. let alone a single agreed solution.
The paper will discuss one possible (partial) ‘solution’ in the Model Equal Opportunity Briefing Policy for female barristers and advocates. is one which has been continually raised across
. While numerous inquiries and reports have warned that polices that are perceived to be affirmative action are tainted by negative connotations and doomed to failure. the paper will argue that the skepticism masks a discourse prevalent in the profession which may produce gender inequality.” The Government’s aim is to create a legal framework for regulating sex work which is acceptable to all parties in Parliament after the failure of earlier reform attempts in 2002 and 2003.
The contested terrain for the regulation of labour in Australia is firstly examined. Then concurrent changes within corporate law are examined. This illustrates that the High Court – whatever its final decision . Throughout the last two decades a number of Australian States and Territories and New Zealand have introduced a licensing system in respect to various aspects of the sex industry. With this in mind and in light of the ongoing reform efforts in WA. Our paper will show that although licensing has in principle the capacity to most effectively regulate the sex industry this is undermined if the system and processes adopted have the goal of repression of the industry. Finally.was unable to solve underlying unresolved public policy issue: effective regulation of workers in a global labour market and in a rapidly changing socio-political environment. in order to illustrate that they could not answer the underlying issue. the public policy analysis of the majority is contrasted with the two dissenting judgments. built on a moral stance which finds its equivalence in the criminalisation model. These two areas have become increasingly more
interconnected within the uniquely Australian context of corporate managers’ increasing prerogative to regulate their workers. REALITY
LIMITS OF AUSTRALIAN CONSTITUTIONAL LAW
Paula Darvas & Eu-Jin Monash University & University of Melbourne
This article analyses the extent to which consideration of public policy in the area of the law regulating work is utilised in the judgments in New South Wales v Commonwealth. Part IV places the legislation under challenge within its socio-political context. RHETORIC.
IS NOT A
COMMODITY’: WORK ‘CHOICES’.
. we aim to compare the various licensing models in place in Australia and New Zealand as a contribution to the debate in WA and elsewhere.jurisdictions and throughout history. however. Part II and Part III places the judgments within a broader socio-political context. contingent upon its detail. giving a critical overview of ‘Workchoices’ changes. The effectiveness of any licensing model is.
NOT SO DISTANT COUSINS: FAMILY BENEFITS IN AUSTRALIA AND THE UK Helen Hodgson & Rebecca Boden The University of New South Wale & University of Wales Institute
Western neo-liberal governments.
DISCRIMINATION. Results from the Queensland Law Society’s ‘Equalising Opportunities in the Law’ Committee 2003 Membership Survey would suggest that this is still an important issue in the 109
. rather than specific to particular policy conditions. were largely copied from each other). The differing policy imperatives of the two countries support the argument that the problems encountered are fundamental to tax and benefit systems. We then set out a range of generic problems with integration. whilst the UK and Australia have ostensibly similar systems (and indeed. All have experienced difficulties and problems in implementation (Commonwealth Ombudsman. as enacted by relevant legislation. Australia. with specific reference to family support mechanisms. have been increasingly seeking to enhance integration between their tax and benefit systems. sexual harassment and workplace bullying are noticeably absent from the new Queensland Rules of Professional Conduct. This suggests that. Integration in this context stops short of the complete union of tax and welfare systems such as that advocated by the proponents of negative income tax. they are driven by quite distinct policy goals. and describe the UK and Australian attempts to address these. Canada and the USA have all now introduced variants of so-called integrated tax and benefits systems.
In this paper we examine the operation of the family tax transfer systems in each country. such as those in Australia and the UK. In this paper we describe the moves towards integration in both Australia and the UK. HARASSMENT AND BULLYING: IS THERE A PLACE FOR THESE IN THE RULES OF PROFESSIONAL CONDUCT? Terry Hutchinson Queensland University of Technology
Previous provisions covering discrimination. The UK. 2003).
and the impact on the victim.profession.
ALL THINGS EQUAL? GENDER DIFFERENCES IN THE SENTENCING OF GENDER-NEUTRAL SEXUAL OFFENCES FEONA SAYLES Massey University
The change to gender-neutral sexual offences is still relatively new in New Zealand. The overall concern for sentencing is whether the punishment corresponds to the harm inflicted. In addition to collating details of the demographic and working habits of over 2500 QLS members. race.
A lack of understanding as to the characteristics of the female offenders and of the impact on victims has resulted in some discrepancies in sentencing. Other states are already taking action on this issue and it is important that Queensland keep pace. In recent cases involving
. One of the impacts of the recent change is the question of how female sexual offenders should be sentenced. including Indigenous Australians. working parents and those with disabilities.
In general the starting point for sentencing of sexual offences has depended on the nature of the physical activity. whether there has been repeated offending. Areas of concern included discrimination or harassment on the basis of gender. sexual preferences. The results of this survey firmly demonstrate that promoting diversity in the Queensland legal workplace should be made a priority. so the full impact of the harm created by these offenders is relatively unknown. family responsibilities. the age of the victim. the Report focussed on the nature and prevalence of discrimination and harassment in the Queensland legal workplace. religion and disability. The absence of these specific rules represents a critical gap which needs to be addressed urgently. More efforts need to be made to improve equal opportunity in the legal workplace so that all sectors of society are represented in the practising profession. age. This is difficult to accurately assess in the situation of female offending as recognition of this type of offending is still in its infancy.
“gross indecency” and “sodomy”. Words that were used by legislators. such as “loitering”. the Gay Liberation Movement in Australia in the early 1970s challenged the legal and medical professions to adopt a more tolerant
. Aspects such as the harm created by these offenders will also be discussed. ECT and aversion therapy could cure homosexuality. have helped shape the perceptions and misconceptions of generations of people in Australia. throughout the early twentieth century. However. under the DSM. as a form of “abnormal psychology”. The story that emerges in these early years is a negative one. the police and the public at large.
This paper looks at the considerations that should be taken into account when sentencing female sexual offenders and discusses whether there should be sentencing distinctions between the two genders. both gay and straight. Influenced by English puritanism.females as sexual offenders there appears to be marked differences as to the way they have been sentenced. Although the courts have appeared to endorse full equality of sentencing between genders there are still subtle gender distinctions present. the laws.
In the 1950s and 1960s the medical profession believed that psycho-surgery.
LAW. judges. During this period homosexuality was severely punished as it was considered a vice of the worst kind. There also appears to be a difference between the way male and female offenders are sentenced. The characteristics of male and female sexual offending will be considered and compared. PUBLIC POLICY
HOMOSEXUALITY TO THE PATHOLOGISING OF HOMOPHOBIA Melville Thomas The University of Western Australia
The history of gay and lesbian people in this country dates back to early convict days. which was defined. social attitudes and mores that were transported to the colonies made life for homosexual people very difficult.
“Law and Sexuality” etc) and what pedagogical challenges are emerging at the academic level. like racism. What informed the lawmakers. (the ECP Case) a special reference to the Supreme Court of Papua New 112
. in this new liberal age.
IMPLICATIONS ARISING FROM
SUPREME COURT REFERENCE NO 2
SPECIAL REFERENCE PURSUANT TO CONSTITUTION SECTION 19. Special Reference by the Morobe Provincial Executive. religion and science – had become the basis for the gradual empowerment of the gay and lesbian community. human rights values. Psychologists also came to understand homophobia. was a world-view shaped by modern psychology. By the 1980s. Part One will explore first hand accounts of those involved in law reform. SPECIAL REFERENCE
BY THE MOROBE PROVINCIAL EXECUTIVE
Tapora Isorua University of Papua New Guinea
The paper will look at Supreme Court Reference No 2 of 2004: Special Reference Pursuant to Constitution Section 19. Ironically.
This paper will focus on the changing legal. community organizations. to be a product of internalised irrational fear. including gay and lesbians activists.attitude towards homosexuals. what were once the sources of homosexual oppression – law. in nearly every Australian jurisdiction. social and political status of gays in Australia. The second part will assess how an increasing number of university faculties and academics in Australia are now incorporating “gay studies” in their disciplines (usually in elective units – such as “Law and Contemporary Social Problems”. homosexuality was decriminalised.
Throughout the 1990s anti-discrimination laws were enacted in most states (2002 in WA) thus making the perpetrators of homophobia the new “deviants” in society. and a more liberal clergy. academics and mainstream politicians.
The paper will conclude by suggesting which laws need to be amended or introduced if need be. At the time of the passing of the Act. powers and immunity if any. with the engagement of Australian public servants and police personal in various government departments. the Government of Papua New Guinea passed the ECP Act attaching the Joint Agreement as a schedule..
..Guinea by the executive of a provincial government which questioned the Constitutional validity of the Enhanced Co-operation Agreement between Papua New Guinea and Australia Act.
The Act was the result of a Joint Agreement between Australia and Papua New Guinea. In July 2004. If the designated police personnel are not peacekeepers or police personnel per se.
The aim of this paper is to show that there still exists the chance of salvaging the ‘policing component’ of the Agreement in order for the given assistance to achieve its objective of restoring law and order. we do need as much assistance as possible and that the policing component of the Agreement if implemented as envisaged would indeed strengthen law and order. governance and. Secondly the legal status of the personnel to be engaged needs to be clarified or defined. what are they? This is crucial as the legal status of the personal to be engaged determines the scope of the exercise of functions. law and order. the circumstances of Papua New Guinea is quite different to that of the Solomon Islands and the situation in Papua New Guinea should be handled as per its peculiar circumstances. accorded to and exercised by such personnel. The paper will attempt to achieve this aim by arguing firstly that in terms of law and order. following several meetings between the respective governments regarding issues of assistance to Papua New Guinea in identified areas such as the implementation of public sector reforms. 2004(the Act). implementation of the Agreement was well underway. to enable of police personnel from other countries to effectively address and strengthen law and order in Papua New Guinea. The decision of the Court (the ECP case) resulted in the repealing of the Act and subsequent withdrawal of personnel from the policing assistance part of the program The paper looks at the policing component of the program and admits that there is a general break down of law and order in Papua New Guinea.
The paper will then offer some recommendations or steps that can be taken to give legal recognition to these traditional ADR mechanisms. It is in this situation that this paper offers the traditional mechanisms as alternate dispute resolution mechanisms in Solomon Islands. though its composition may be local in nature. Over long period of years societies had developed ad hoc and informal mechanisms to deal with these disputes. resulting in a growing need for alternate forms of dispute resolution. 114
. Findings indicate that people fail to take heed of these mechanisms because of their informal existence and their lack of legal backing from the formal laws. only to be overshadowed by the introduction of the court system and formal laws by the colonial administrators. in recent years there is an increasing global recognition or realization that the conventional adversarial system of dispute resolution has become increasingly ill-suited for resolving disputes.
However. the Solomon Islanders developed a natural mindset that formal courts are the only recognized institution for resolving disputes. Disputes and problem solving is an integral part of the communities.ALTERNATIVE DISPUTE RESOLUTION: MEDIATION COMMUNITIES Paul Mae The University of the South Pacific
RURAL SOLOMON ISLANDS
Dispute Resolution is not a new concept to Solomon Islands societies. The important question this paper set out to explore is the legality and enforceability of these ADR mechanisms under the existing laws of the country. The practice continued when the country attained independence in 1978. Even the local courts are seen as European styled courts.
The paper will identify the alternate dispute resolution mechanisms that exist in the Solomon Islands communities. Over long years of subdued political freedom. The general assumption is that only matters brought before the court are legal and enforceable. The paper will concentrate on traditional or informal mechanisms. Parties are not satisfied with the outcome of the court hearings.
. as they provide an interesting comparative base. as too are proposals for reform. In analysing these reasons. It is the purpose of this paper to consider the relationship between tortious negligence and reduced capacity.
This analysis of negligence law’s response to capacity reveals a distinct inconsistency.TORTS AND CONTRACT
CAPACITY IN TORT LAW – THE UNCONSIDERED SUBJECT Nikki Bromberger University of Western Sydney
Capacity plays an important role in many areas of the law. Suggestions of alternative reasons for the current law are offered. with particular reference to the mentally ill.
The paper considers the problem of accommodating capacity within the negligence structure and then examines the reasons offered by the courts deciding cases regarding the liability of the mentally ill.
Scholarly attempts to explain negligence law’s response to the mentally ill will be considered as will the difficulty in accommodating adequately the needs of both plaintiff and defendant. similar decisions relating to children will be considered. Courts accept the reduced capacity experienced by a child as a factor to be taken into account when determining liability. yet it is infrequently discussed in tort law. but they do not afford the same level of sensitivity when the reduced capacity is due to mental illness. unless it is in relation to consent.
each of these also represented important developments of the law. in which a rape victim was traumatised by the publication of her identity by a national broadcaster. Implications for the media are also considered. The apology does not feature in books on remedies. In recent years. The reason for this is simple: the apology is not a common law remedy. In upholding the claim. the role of apologies in tort law has been the focus of attention in
. breach of confidence and breach of common law duty of care.JANE DOE V ABC AND MEDIA LIABILITY FOR DISCLOSING PERSONAL INFORMATION: FOUR MORE BOLD STEPS … IN FOUR DIFFERENT DIRECTIONS Des Butler Queensland University of Technology
In April 2007 Hampel J in the Victorian County Court delivered her judgment in Jane Doe v ABC. forgiveness and reconciliation. Hampel J became only the second Australian court after Skoein SJDC in Grosse v Purvis to take the bold step of recognising a claim for breach of privacy. Hampel J also based her decision on the alternative grounds of breach of statutory duty. or in works on contracts and torts. Significantly. the apology is not generally available as a legal remedy. It is rare for a court even to contemplate the availability of an order to
apologise. Although attracting less media attention. particularly in the context of current developments in protection of privacy interests and media negligence. however. although this time in a different context.
APOLOGY AS A REMEDY IN CONTRACT AND TORT – RICH POTENTIAL OR FALSE PROMISE? Robyn Carroll The University of Western Australia
Despite the frequent lament of victims of wrongdoing that ‘all they ever wanted was an apology’ and research that establishes the importance of apologies to the process of healing. It is shown that aspects of her Honour’s judgment are problematic. This paper examines the decision.
This area of law reform has excited much debate about the morality and efficacy of protecting apologies.A TALE OF TWO PRINCIPLES Ian Henry Victoria University
The distinction between vicarious liability and the non delegable duty seems to have blurred over time. The notion of a non delegable duty was introduced for a very specific purpose. the nature of the duty itself needs to be examined. The non delegable duty has been described 117
.the form of civil liability rules aimed at removing legal disincentives to potential defendants to apologise for the harm they may have caused. The problems that arise from this are clearly demonstrated in the decision of State of NSW and Lepore. established in Wilsons & Clyde Coal Co v English  AC 57. To ascertain the cause of this confusion the reasons surrounding the
introduction of the non delegable duty. However. In equal opportunity law and areas of copyright law in Australia. It will be argued that there is potential. for example. There was considerable confusion demonstrated by the various judgements in Lepore over the possible application of the notion of the non delegable duty to circumstances other than the employer/employee relationship.
VICARIOUS LIABILITY AND THE NON DELEGABLE DUTY. for judicial remedies to place more emphasis on the therapeutic benefits and rights enforcement potential of this form of non-monetary relief. It can be suggested that any confusion arises. need to be considered. Samin and State of Queensland & ors. This paper will analyse three cases from Australia. from a
misunderstanding of the nature of the duty. Also. this purpose now seems to have been largely ignored and the scope of the action broadened considerably. In one case the action arose out of a contractual relationship. New Zealand and Canada where the apology and similar forms of relief have been the subject of judicial consideration in common law actions. in part. orders to apologise are made not infrequently. A much less noticeable debate centres on the exercise of the discretionary powers of a court or tribunal to order a defendant to apologise. albeit limited in scope. Rich and State of Queensland & ors  HCA 4 and The Commonwealth v Introvigne (1982) 150 CLR 258. the other two actions involved defamation and malicious falsehood.
Specifically. the same cause of action. Community housing is part of the broader field of social housing and constitutes a social good funded by the Commonwealth. This suggests that a different duty (and in this it can be suggested a higher duty) is owed pursuant to the non delegable duty. This is explicitly referred to in the CCH Tort Commentary at 50-810 where it is written “[a] more demanding duty of care than that prescribed in Donoghue v Stevenson is known as the `”non.
NEW HORIZONS IN CONTRACT LAW-APPLYING CONTRACT ANALYSIS TO THE PROVISION
OF SOCIAL GOODS. In New South Wales there has developed a strong argument supporting the transition from a funding agreement structure to the negotiation of legally styled and legally enforceable contracts between the NSW Office of Community Housing as the relevant state government regulatory 118
The purpose of this paper is to consider the legitimacy of extending the notion of non delegable duty to circumstances akin to that of vicarious liability. Funding agreements have played a crucial role in structuring the relationships between the various participants. the paper will examine the transition from funding agreements to legally styled contracts as part of the changing governance framework for community housing in New South Wales.as a special duty of care by Mason J in Kondis v State Transport Authority 154 CLR 672 at p 687. administered by New South Wales and delivered by not-for-profit autonomous housing organizations. In so doing a
comparison of the rationale for each needs to be undertaken. as well as a consideration of the requisite standard of duty owed.delegable'” or “special” duty of care”. any effort to present them as alternative causes of action can only result in confusion. It should become apparent from such an analysis that the actions of vicarious liability and the non delegable duty are.A CASE STUDY OF COMMUNITY HOUSING
Michael Nancarrow Central Queensland University
This paper will be presenting research from my PhD into the regulation and governance of community housing in New South Wales. with some minor exceptions.
With a focus on the position in Queensland this paper considers both the civil and criminal consequences of drink-spiking for the victim.
The paper will conclude with a brief discussion of how these dimensions of contract law analysis has potential to students. impact upon the teaching of contract law to international
IF YOU DARE:
CIVIL AND CRIMINAL CONSEQUENCES FOR THE VICTIM OF
INTENTIONAL DRINK SPIKING. The recent case of Dianne Brimble who was found naked and dead on a cruise ship has graphically illustrated the potentially lethal effects of such conduct and enlivened calls that drink spiking should be outlawed. interesting questions arise regarding the extent of legal protection afforded to potential victims. In some Australian jurisdictions legislation has already been passed making drink-spiking a criminal offence. With the creation of new offences.authority and individual community housing providers.
Mandy Shircore & Malcolm Barrett James Cook University
Over the past five years. much attention has been given to the extent of drink spiking in Australia. Who can a person sue if they are the victim of drink-spiking? What can they sue for? What damage will the victim need to establish in order to be compensated?
. The argument is contextualized within the wider debate concerning the role of contracts in public and quasi-public sector governance and the sociological dimension of contractualism. This paper examines the implications of this transition and contrasts the utility of classical contract theory with relational and ‘soft’ contract theory in explaining how contracts could function in structuring the relationship between an agency of government and not-for-profit nongovernment community organizations in the funding and delivery of a social good like community housing. and recently the Federal Minister for Justice announced plans to consider uniform laws outlawing drink and food spiking in all jurisdictions.
The background of the changes in personal responsibility in the civil liability acts is an interesting counterpoint to the approach to employment law and the gradual winding back of hard-won protections for employees.Of particular concern is the situation where the victims themselves behave erratically and commit tortious acts or offences after having their drink spiked. In recent decades the true debate in the law has shifted from the infantile insistence that judges should merely
. this paper considers whether the law currently provides adequate protection for the increasing number of victims of drink spiking behaviour. While the creation of new drink spiking offences may assist in deterring offenders. In such circumstances the position under the Queensland Criminal Code is inadequate as it would not allow the victim to plead the defence of intoxication for any offence which does not involve specific intent.
NERVOUS SHOCK IN EMPLOYMENT : THE HARD LINE HIGH COURT Prue Vines The University of New South Wales
Koehler v Cerebos and Fahy v NSW are interesting examinations of a hard line being taken by the High Court in employment cases where psychiatric harm is in issue. These cases are also interesting because they do not directly address the question of the standard of care for non-delegable duty. Judges make law…. AND PUBLIC POLICY IN THAT ORDER’: DOES IT WORK FOR WRONGFUL LIFE AND BIRTH? Penelope Watson Macquarie University
According to Justice Michael Kirby.to deny the creative function and duty of the judiciary… is absurd. LEGAL PRINCIPLE. ‘Judges face choices.
‘COMMON SENSE. This is particularly significant in that it arises in a situation where a non-delegable duty of care has traditionally arisen which led to disputes in the past about whether the liability approaches strict or is simply the ordinary standard of care attributed in negligence.
the law to a consideration of when and why a new legal rule should be expressed by a judge.
. it proposes a framework within which to critique recent appellate decisions in the birth torts (wrongful life and birth). and never make. Drawing on this. as well as the scholarly jurisprudential literature. And when a new rule is justified. examining appellate judges’ conceptions of judging and decision making.’ This paper explores the judicial law making process in novel situations. When restraint is called for in the judicial decision.apply. in particular the use of and balance between principle and policy and common sense.