Teaching Law

Sunday, 22 December 2013

The perils of individualism and our dystopian present


As a child, I read constantly and I read anything. Of note however, before I had reached secondary school I had been immersed in numerous novels about the Holocaust, had read Alvin Toffler's Future Shock and had spent a lot of time delving into Alicia Bay Laurel's glorious hand written and illustrated Living on the Earth.

Mine was a childhood vision of a dystopian present and a dangerous future for which I felt the need to prepare by knowing how to survive. This was accompanied by a deep sense of responsibility to be accountable for my own consumption. (A responsibility I admit that I have been only partially successful in fulfilling.)

Surrounded today by news of climate extremes, oil drilling in the Arctic, the real possibility of dredging in the Great Barrier Reef, expanding coal terminals on the reef, mining approvals over biodiverse regions such as the Galilee Basin's Brimblebox Reserve, move on powers over Queensland's bat colonies (and so on) the dangerous future I had envisaged has come to pass. And the dystopian present of the 1970s has taken a turn for the worse.

All of these decisions, in which each of us is complicit, arise out of a fundamental dislocation of our very self from our environment and indeed from society. Our governments however have failed to provide a cohesive narrative around these decisions, thus failing to see the inherent inconsistencies in their own positions.

Friday, 20 December 2013

There's no property in reputation

In a Sydney Morning Herald piece yesterday, the new Freedom Commissioner Tim Wilson claimed that reputation was 'essentially a property right'.

With the greatest respect, this is not correct as a matter of law. 

Sunday, 8 December 2013

Vale Denis Wright: the power of connection on Twitter

I have now been considering for some time the power of social media as a means of connecting professionally and intellectually with others. Indeed I have now co-authored two articles (one forthcoming) with online colleagues about the use of Twitter and blogging in legal academia. In the articles we have focussed on the capacity for sharing ideas and the value of social media in teaching and research. Peripherally we acknowledge the power of social media to connect on a more personal level.

On that note, I learned this morning of the death of Denis Wright. I 'knew' Denis via Twitter. I interacted with him occasionally. I also read his blog in which he shared stories of his life and with pragmatism and insight shared stories also of his declining health.

Despite our infrequent interactions online, I credit Denis with inspiring what may be a turning point in my own development as an academic. Perhaps this is a professional connection, but it felt - and feels - to me a personal one. In my early days on Twitter, I had a number of discussions with Denis on legal issues of interest. It was Denis who suggested to me that I write on a blog. He promised faithfully that what I had to say was important - well, important enough to attract an audience.

And so it was that two years ago - almost to the day - I made public my first post. Denis was the first to tweet about it. His confidence in me afforded me the courage to out myself in the hurly-burly of the online world. Surprisingly for me (especially given my often dry subject matter) my blog has to date clocked up over 43,000 hits.

For all the formal mentoring systems and processes, for all that has been written about academia and collegiality, I found in Denis Wright a combination of generosity of spirit, intellectual curiosity and quiet confidence that has, in retrospect, aided me in finding my academic voice.

Independently of any metrics of impact, or number of hits, or numbers of retweets, or 'outcomes' in the language of the neoliberal university, my occasional 140 character interaction with a man I would never meet in real life, represents the real measure of value of online engagement. Despite the moral panic to the contrary (bullying, trolling and our lost youth) there are, I believe, genuine human and humane relationships mediated by online tools.

And Denis Wright, gentleman of the blogosphere, showed exactly how that could be done.

Wednesday, 4 December 2013

Normative foundations of intimate partner constructive trusts

On 5-6 December the Melbourne Law School is hosting a Trusts Conference at which I will be presenting.  Here are the speaker notes and powerpoints for my presentation.
'Distribution, Redistribution or Maintaining the Status Quo? The Normative Foundations of Intimate Partner Constructive Trusts'

Judgments concerning intimate partner constructive trusts often claim not to effect a redistribution of property as between the legal and beneficial owners. Yet despite looking at the parties’ respective contributions and the context of their relationship, the courts’ findings embody assumptions about justice and the value of labor within marriage-like relationships. Therefore in finding a constructive trust and determining the date at which it arose, it is at least arguable that the courts are themselves allocating property interests. This paper examines key Australian decisions on intimate partner constructive trusts to identify and critique possible justificatory norms on which contemporary doctrine in this area is founded.

Sunday, 24 November 2013

How Queensland is failing to measure up to standards of accountability

Checks and balances at risk in Queensland*

Following its findings of extensive corruption in Queensland government and police service, the Fitzgerald Inquiry recommended an independent body be established, charged with investigation of corruption and crime in Queensland. 
Detailed analysis of the various common instances of other prevalent official misconduct is not called for in this report. It is sufficient to record that the evidence before this Inquiry plainly established common and, apparently, growing manifestations of other official misconduct and its central importance in facilitating major and organized crime.
The seriousness of that other official misconduct must not be overlooked. Rather it is the plainest demonstration of the need for the researched and integrated approach to organized and major crime mentioned earlier in this report.
One possible model explored by the Report was an independent commission against corruption. This was rejected because of the myriad tensions inevitably associated with it. Instead, a Criminal Justice Commission ('CJC') was recommended, to be overseen by a parliamentary Criminal Justice Committee [Part 10.2]. In 2002, the CJC merged with the Queensland Crime Commission to form the Crime and Misconduct Commission ('CMC').

As the functions of the original CJC have evolved, it is instructive, particularly in light of recent political events in Queensland, to revisit Fitzgerald's discussion of the tensions and challenges in having an independent commission against corruption. Many of his observations seem pertinent to the CMC and its relationship with the government.

In this post I will use Fitzgerald's report to provide context for why developments in Queensland are so troubling.

Thursday, 14 November 2013

Forced removal of children. When will government learn?

Today's media contains the sobering news that an asylum seeker known as Latifa has been detained separately from her week old infant Farus, who is suffering respiratory problems. She is permitted to visit him between 10am-4pm but is otherwise detained with her husband and two other children. Farus' father has not been permitted to visit.

The reaction to the treatment of Latifa, Farus and their family has focused on the cruelty of separating a mother and sick infant. I agree with this assessment, but I am always interested to observe the essentialising of women's role as mother. I think that it is worthwhile to look more deeply into this picture to tease out what values are at stake in our government's treatment of this woman, her child and the child's father.

Sunday, 3 November 2013

Is the Queensland government man enough to really get 'tough on crime'?

The Queensland government has launched a new phase in its 'war on bikies' through a raft of new regressive legislative provisions that criminalise association and provide for mandatory additional sentencing and automatic refusal of bail. In its 'unapologetic' 'crackdown' on 'criminal gangs' the government acknowledges that there will be 'some inconvenience' to law abiding citizens, but that if we have 'done nothing wrong, there is nothing to fear'.

In this post I ask why, if the government is really serious about getting 'tough on crime', it is not engaging in open discussion about, and introducing 'tough new measures' to deal with, domestic violence, sexual violence, violence against women. Is the law and order agenda in Queensland a gendered one?

Sunday, 20 October 2013

Are there boundaries to freedom of contract?

Contract law recognises the application of power
Does contract as we know it continue to exist? That it may not is a fairly bold proposition...greatly discussed of course since Grant Gilmore's 'The Death of Contract' in 1974. Gilmore argued that:
The most dramatic changes touching the significance of common law in modern life also came about, not through internal developments in common law, but through developments in public policy which systematically robbed contract law of its subject matter…removing from ‘contract’ transactions and situations formerly governed by it... [p6]
In August this year, a Queensland Court of Appeal decision provided evidence to support Gilmore's thesis, upholding a purchaser's right to end an otherwise valid residential land purchase. The reason? The vendor's solicitors, in sending the contract to the purchaser's solicitors, failed to draw their attention to the warning statement attached to the front page. This breached s368A(2) of the Property Agents and Motor Dealers Act 2000 (Qld) ('PAMDA').

Does this provision, and its interpretation, really protect consumers? Or is it instead a blunt instrument that erodes all the assumptions we make about the foundations of contract law?

Sunday, 15 September 2013

A sense of entitlement? The (gender) subtext of 'lifters not leaners'

The Coalition’s pledge to revive work for the dole and income management has reignited the inevitable claim that those receiving welfare have a ‘sense of entitlement’. The Prime Minister-elect’s own pledge to build an Australia of ‘lifters not leaners’ is indicative of this. The gist of this claim rests in an assumption of the moral or psychological deviance of welfare-recipients that itself is an unacknowledged and uninterrogated ideological stance.
The pejorative ‘leaners’ demonises those on welfare while framing the struggle over needs in a way that avoids engagement with the structural change that is required genuinely to bring along all in society in a common endeavour. 

Wednesday, 14 August 2013

Sex appeal and the 'disorder of women'

suffragettes violent police
Did we get the vote so our sex appeal could be rated?*

The Leader of the Opposition, Tony Abbott, described Fiona Scott, one of his party's candidates for the forthcoming federal election as 'young and feisty' and that she has 'a bit of sex appeal'. The comments have gone viral, and have been widely reported in the mainstream media in Australia and overseas. Naturally, they have attracted comment - both from those who criticise his statements as sexist, and also from those who believe that the comments are at worst harmless, and at best, complimentary.

Behind the discussion about the offensiveness or otherwise of the comments is what they reveal about the place of women in public life in general, and political life in particular. It is interesting therefore to view the comments according to how we conceive of and justify civic participation.

Saturday, 27 July 2013

'Family' values and the privatisation of welfare

From Father Knows Best
If women have a baby outside a stable relationship, they may break the social security system.
A couple of news items in the weekend papers have piqued my interest in the ongoing conservative putsch to retain the centrality of the family in society. The first of these was a story about the Federal Opposition MP, Kevin Andrews, who has signalled a 'socially conservative change' to welfare policy under a coalition government. (Andrews' views on family are well known.)

The second is a piece in the Weekend Australian by Catholic pro-family conservative writer, Angela Shanahan opining about the importance for women of marrying a stable man. For the children.

These uncritical views rely on a combination of sentimentality and ‘facts’ about how society benefits from this institution. What they fail to reveal is the history of paternal control over women and children central to the effective operation of the family in a patriarchal society. And by family, what they mean is a married heterosexual procreative union.

These views of family implicitly blame single mothers and their children for the breakdown of society. I maintain that it is instead the narrow construction of the institution of ‘family’ that feeds into the moral (conservative) panic of social collapse. What we need instead is a re-imagining of society.

Monday, 15 July 2013

'Invisible substances': Can we trade them? Of course we can...

Today I heard the leader of the federal opposition, Tony Abbott, describe the government's proposed change to an emissions trading scheme, as:

A market in the non-delivery of an invisible substance to no-one.

This position is not new, and Mr Abbott has for some years described carbon in terms such as an 'invisible, odourless, weightless, tasteless substance'. Regardless of the science or the economics involved in characterising carbon and the effectiveness of a carbon market per se, what interests me is the problematising of a market in an 'invisible substance'. It also surprises me in light of the law's unambiguous acceptance of intangibles as property, which supports the commodification and therefore marketisation of a host of 'invisible, odourless, weightless, tasteless'...non-substances.

Sunday, 2 June 2013

The Ecology of Land Regulation in Queensland

Sustainable Development Infographic

In the last couple of weeks, the Queensland government has passed changes to tree clearing legislation and introduced provisions allowing cattle to graze in certain national parks and reserves. Both changes represent a regulatory shift in land use priorities relating to biodiversity and conservation and the ecological sustainability of industrial farming that threaten legislative and policy progress on ecological sustainability.

Thursday, 16 May 2013

Human Embryo Research: Who Donates the Eggs?

File:White chicken egg square.jpg
Who donates the eggs?*

In headline news today, scientists have announced a breakthrough in human cloning. Human skin cells and a woman's egg were used to create an early stage embryo that is a copy of the original skin cell. The news is being celebrated largely because of the possibility for this process to develop therapy or cures for many afflictions.

There is also concern however over other implications of the process - principally the spectre of cloning humans themselves. Most responses I've heard on this point so far, have focused on the strict regulation of human cloning for reproduction, and the severe legal penalties for breach.

This is a complex enough issue - weighing the obvious therapeutic benefits for those suffering debilitating diseases and the concerns attendant on the technology taking us down the path of human cloning. However there is another aspect that I've not seen mentioned in the media so far: namely the origin of the 'donated' eggs.

Sunday, 7 April 2013

Compensating Organ Donors: Commodification or Freedom?

The Commonwealth government has today announced a ‘grant’ scheme for live organ donors. The scheme will pay live organ donors the minimum wage for six weeks following donation, with the aim of supporting them financially.
Such a decision is likely to ignite the debate over the morality of payment for 'transactions' involving the human body. There are two sides to this debate: the risk of commodification of the human; and the freedom and autonomy of donors to choose how they deal with their body.

Friday, 29 March 2013

Paying the Tax Man

Students of taxation law often see little connection between tax and other practice areas. In reality, tax tends to raise a variety of interesting issues in almost every other field of law. This post is about one such example.

Those who have bought and sold real property would be aware that at 'settlement' the buyer pays the purchase price and in exchange, they receive the clear title to the land. Clear title means that any mortgage over the property is released. To release the mortgage, the seller's mortgagee will need to be paid out. Usually, all this happens in one place at the same time. While it looks like a single seamless transaction, in fact it involves two discrete transactions: that between the outgoing mortgagee and the seller; and that between the seller and the buyer.

A 2012 decision of the Full Court of the Federal Court has called into question the position of hte releasing mortgagee at settlement through the operation of a tax statute.

Monday, 21 January 2013

Women's rights are human rights

Nurse-in on Bribie Island*

Well the double standard is alive and well on social media today.  Outrage - outrage - at women staging a 'nurse in' outside the Sunrise studios. The tenor of this outrage on Twitter seems to be somehow that David Koch, in calling for women to be discreet and classy in their breastfeeding habits, is simply expressing opinion and that this is not deserving of protest.

Friday, 18 January 2013

Why is Breastfeeding Scary?

Breastfeeding: it's good enough for the Saviour, why not for all?*
Daily morning TV presenter David Koch today told his audience that breastfeeding is something that should be done away from a public area – that women breastfeeding in ‘high traffic areas’ should be a ‘bit discreeter’. He made these comments in response to a report that a woman breastfeeding at a public swimming pool in Queensland was told that she could not do so, and that she should move to another secluded area or leave. 
This request is clearly in breach of s7AA(2) of the Sex Discrimination Act 1984 (Cth) (added to the Act in 2011), in that this woman was treated:
less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat someone who is not breastfeeding.
This set of circumstances raises three related questions: why the woman may have been asked to leave; why ‘Kochie’ would have agreed that this was appropriate; and why breastfeeding would ever require such legal protection.