Teaching Law

Monday, 22 December 2014

Lady Budgets: An Explainer

Every woman's dream*
The Prime Minister, Tony Abbott, again today finds himself the subject of attention following comments on a morning TV show. Asked for his greatest achievement yet as the Minister for Women, the PM said that it was 'repealing the carbon tax'. He went on to say:
'As many of us know, women are particularly focused on the household budget and the repeal of the carbon tax means a $550 a year benefit for the average family.'
Foreign Minister Julie Bishop, who herself does not view the world through the 'prism of gender', defended the PM by saying 'women's policy is everyone's policy'. She is of course correct. We would all benefit from advancing women's interests, giving substance to formal equality, ending feminised poverty and violence against women. Except that there is one thing remarkably absent from the PM's statement and indeed the government's own policies. And that is women themselves.

The PM's statement is a clear statement of the government view that equates women's economic standing with that of the household. This is incorrect and reinforces women's dependence at a structural level.

Tuesday, 16 December 2014

Law reform is a 'frontline service'

Integrated frontline services
Under the Legal Profession Act 2007 (Qld) ('LPA'), the Minister may approve grants for the purpose, amongst other things, of 'the advancement of law reform.' Grants come from the Legal Practitioner Interest on Trust Accounts Fund ('LPITAF'). In 2012 the Attorney-General ordered a review of the application of these funds ('LPITAF Review'). The focus of the review was the alignment of fund distribution with the government's strategic objectives of 'front line' service delivery.

On 26 November, the Queensland government introduced the Justice and Other Legislation Amendment Bill 2014 ('Bill'). The omnibus bill seeks to amend over 30 Acts including s289(1)(h) of the LPA - the provision for grants to advance law reform. Instead, the proposal is that funds may be applied under this subsection only for the purpose of:
facilitating access to the legal system, legal information and education and legal services for members of the community, particularly economically or socially disadvantaged members of the community.
This captures many of the previous purposes of the grants, but not the advancement of law reform.  The Bill states that this amendment
reflect[s] changes as a result of the implementation of recommendations resulting from the Review of the Allocation of Funds from the Legal Practitioner Interest on Trust Accounts Fund
The LPITAF Review, however, did not recommend removing law reform from the purview of the fund. Even if it did so, this amendment ignores substantial evidence about the strategic nature of investment in law reform work in the efficient and effective delivery of justice, particularly to economically and socially disadvantaged members of the community.

In other words, the proposed amendment directly contradicts the government's stated strategic objectives. This proposed amendment should be rejected.

Wednesday, 10 December 2014

Planning law is not property: Sea level change in Queensland

Poruma - community call for help to deal with erosion Jan 2014
The Torres Strait is already suffering sea level rises*

Queensland's Infrastructure Minister, Jeff Seeney, has ordered a local government authority to remove from its regional plan any references to climate change induced sea level rise. The stated objective of this directive is 'to ensure residents' rights to build and develop their properties were maintained and not restricted by their local council'. The Minister confirmed that he had intervened to protect property rights.

I suggest that instead, the Minister has a confused understanding of appropriate government authority to regulate land use, thus undermining government's own legitimacy in this area. Additionally he has generated a dissonance between the real-world market practice of insurers and the ideological myth of property as dominion. In doing so he may be exposing the local authority (and state government) to liability in the future. All in the name of property.

Does his argument have foundation? Or does it simply reflect an ideological position?

Tuesday, 9 December 2014

Changing Academic Requirements for Lawyers - Yes Please!

Better get a lawyer, son.

The Law Admissions Consultative Committee ('LACC') has called for submissions in its review of the academic requirements for admission to legal profession in Australia ('Review'). The Review is the latest in a series of discussions and mini-reviews over the past decade or so about Australian admission requirements. This has occurred largely against the background of calls by the judiciary for more emphasis on statutory interpretation in Australian law schools. The sequence of events: reports, submissions, recommendations etc as to statutory interpretation is canvassed in the Review.

At the same time, the Australian Productivity Commission has handed down a report into access to justice ('Report'). Chapter seven of the Report covers legal education and makes recommendations including that the Priestley 11 be reviewed (recommendation 7.1). The Priestley 11 are the core academic requirements for admission to practice in Australia, and must be taught by a law school to become an accredited degree.

The Report and the Review are interesting to read together. While obviously they are addressing different purposes, they contain inconsistencies that perhaps lay bare the conflicted status of the law degree. I might observe that Margaret Thornton has been exposing this for some decades now.

In this post I will focus on the LACC Review. In particular I respond to some of the questions it poses about the academic requirements. As a starting point though, I will outline the conflicts inherent in the very notion of legal education.

Friday, 14 November 2014

The Disgrace of Western Australia's Treatment of Aboriginal People

Pivot West*

The Western Australian government has commenced a program of closing down about half of the state's 274 remote communities. The program will, the Premier acknowledges, 'cause distress' to the more than 12,000 Aboriginal people who live there. Premier Colin Barnett cites the 'existing high rates of suicide, poor health and a lack of jobs' as well as the 'abuse and neglect of young children' as the reason for these measures. He says that the latter is 'a disgrace for the state'.

The Western Australian government is somehow managing to make this disgrace even worse. What is unclear about these extraordinary measures is how replacing one government disgrace with another provides any kind of solution to the endemic social problems of these communities. Sadly this act of institutional racism in pursuit of so-called economic outcomes is unsurprising. The signs are all around us that government, at all levels, has failed society in its metamorphosis from state to business.

Sunday, 5 October 2014

The cost of 'regular' freehold over Indigenous land in Queensland

J.D.Lang, Map of the proposed seven united provinces of eastern Australia, 1857
Opening up land for development*

There is perhaps a tension within the way we understand these communities as both an expression of Indigenous autonomy but also with a more oppressive colonial past. This tension is implicit in the complicated relationship between ideas of being treated the same - having a 'regular' freehold title - and recognising communal title and traditional ownership as prevailing norms within Indigenous communities.

The Queensland government has now passed the Aboriginal and Torres Strait Islander Land (Providing Freehold) Act 2014. The Act's primary purpose is to enable the freeholding of land in Aboriginal and Torres Strait Islander communities. Presently much of this land is held as Aboriginal or Torres Strait Islander freehold or on trust for the community. The current arrangements limit the grant of these interests to traditional owners or other Aboriginal or Torres Strait Islander inhabitants of the community. The existing freehold is therefore a limited type of freehold.

The aims of this reform is to 'introduce the option of ordinary freehold title into Aboriginal and Torres Strait Islander communities'. According to the government, this will 'provide greater economic development opportunities and remove barriers to home ownership in Aboriginal and Torres Strait Islander communities.' While this may well be the effect, it raises the question: at what cost?

Friday, 19 September 2014

Terror: abstract and embodied

How do women respond to threats of violence?*
Over the last two days, Australian media have been filled with reports of the execution of search warrants in a number of locations in Brisbane and Sydney. Two have already been charged with terrorism-related offences as a result, and investigations continue. Security at Parliament House in Canberra has been 'ramped up' after 'chatter' revealed a security threat. These events follow the upgrading (downgrading??) of Australia's security status to 'high risk'. For all the talk of terror plots, security experts say that 'lone wolves' pose the greatest threat to our safety.

The public has been told to be alert, but reassured of our safety. The Queensland Premier has gone as far as to proclaim Queensland as the 'safest place in the world'. These reassurances only seem to me to feed into an alarmism surrounding these so-called terror threats. I note also that these events and political responses to them are proximate to the introduction of 'sweeping new powers' for Australian security agencies under the National Security Legislation Amendment Bill. Of some concern, these powers, according to Senator David Leyonhjelm will 'open the door' to torture.

In the face of the wall-to-wall coverage of these recent events, I am left unable to assess either the nature or the extent of the risk of the types of crimes described by authorities. That is principally, random acts of violence. I realise that these possible crimes are truly awful, and that the police and authorities must take action to protect the community.  I cannot, however, seem to stem a skepticism about the reality of the so-called 'threat'. I think my skepticism is borne out of seeing how police so frequently fail to respond to actual and reported threats of violence against women.

Wednesday, 10 September 2014

Ending Feminised Poverty

Here is my piece in Eureka Street on ending feminised poverty. 
Progressive institutional reform requires setting a clear direction confirming the value of women in all social and institutional contexts: the workplace, the home, the parliament, courts and executive, in education, sport, media and culture.

Sunday, 7 September 2014

Women's property - the case for ambitious change

Were they ambitious enough?

The proposal for constitutional recognition of Aboriginal and Torres Strait Islander Australians is in the news again, with Tony Abbott putting the brakes on anything that looks like a 'bill of rights'. At the moment, it's looking like a split argument as between 'minimalists' and others - just as occurred with the republic referendum all those years ago.

I've written about my own views on constitutional recognition, suggesting that a full suite of changes is necessary to achieve the goal. In this post though, I'll explore another minimalist change to rights - that of married women's property. My suggestion is that in failing to be ambitious in the change ushered in, what looks like a win only really reinforces the status quo.

Wednesday, 16 July 2014

Bring back the cane: revisiting patriarchy

The head of the government's curriculum review, Kevin Donnelly, said yesterday that corporal punishment in schools was an effective way of disciplining children. The conversation continued, leading to the implication that Donnelly is not averse to reintroducing corporal punishment into Australian schools.

Australia is a signatory to the Convention on the Rights of the Child. Australia therefore has obligations to protect children from violence or abuse, by their parents or anyone caring for them (article 19); and discipline in schools should respect children's human dignity (article 28). There is no overarching statute however that implements the provisions of this Convention and regulation of schools and criminal laws that may apply, are left to the states.

A number of news outlets have conveniently summarised the legal framework on corporal punishment in schools - see eg Crikey's explainer. There seem to be examples in both West Australia and Queensland where corporal punishment is integral to some schools' program - including in one reported case, the requirement for parents to accept corrective punishment as a condition of enrolling their child.

For a government appointee ostensibly holding expertise in education and charged with advising government on matters of education, these comments and their implication are concerning. This is so despite Minister Pyne's rejection of the idea. What these views really tell us about the state of play in Australia at the moment is the resurgence of patriarchal views and patriarchal control. These views are apparent, for example, in the government's discourse around 'lifting and leaning'. Donnelly's views play into this discourse.

I'm interested in this post to explore the way in which this patriarchal attitude underpins support for corporal punishment in schools, and the lack of logic in Donnelly's ideas.

Friday, 4 July 2014

Unsettled Great South Land? 'Um' indeed

Australia: settled? Unsettled?
The Prime Minister, Tony Abbott, in a speech concerning foreign investment is reported as having said 
I guess our country owes its existence to a form of foreign investment by the British government in the then unsettled or, um, scarcely settled, Great South Land.
Similarly, this week New Matilda reported on Rolf Harris' racism, noting his 2008 comments that
The attitude is that in their [ie Aboriginal peoples'] original way of life they would really wreck the surrounding countryside that they lived in and they would leave all the garbage and they would go walkabout to the next place.
Without addressing the implications of the Prime Minister's equating English acquisition of Australian territory with the benign sounding 'foreign investment', the allegation of a 'scarcely settled' land deserves correction. Like Rolf Harris' statement, it represents a misunderstanding of the nature of connection, occupation and use of land by Aboriginal and Torres Strait Islander Australians. While I cannot speak for Aboriginal and Torres Strait Islander peoples, I believe that I can point out the obvious mistake in these outdated notions.

Thursday, 3 July 2014

Steps to generate (digitally enhanced) change in legal education

Information exchange the old way*
My last two posts have featured a developing argument in favour of designing legal education within a 'digital context'. Initially I argued that the degree requires a shift from the silos of disciplinary categories to a more contextual approach to teaching and learning law. I then suggested that the imperatives of contemporary (and future) digital technologies and their integration into the fabric of our lives demanded a re-imagining of law and legal education within a digital context. Others have articulated this in different ways. See for example Paul Maharg; the IT Countrey Justice; Kris Greaves; and Richard Grant and Marc Lauritsen in the US context.

So far these are justifications for changing what we do but without much direction in how we might go about it. I'm cognisant of the reality for many academics that a lot of change is just hard work. However I believe that it is our job, our responsibility to keep abreast of change, to evaluate, to experiment and to lead. In this post I suggest a few steps that each of us can surely take to kick off a more wide-ranging change within the discipline.

Sunday, 15 June 2014

Legal education in a digital context

Technology of the past? Or for the future?*

In my last post, I reflected on the future of legal education. I focussed on the importance of learning law in broader contexts and one of those contexts I called digital literacy. It was this idea that attracted the most attention on Twitter, and one that I am starting to work with in our own curriculum.

While I am not an expert in digital technologies, I am interested in thinking progressively about the law and justice, and consequently about legal education. Others are expert in digital pedagogies, e-publishing, legal informatics, information visualisation, altmetrics, coding, e-discovery, intellectual property, e-commerce, e-research and the future of legal practice. I seek to draw together these spheres of thought to develop a coherent discipline-specific and overarching rationale for digital literacies to inform the law curriculum.

In this post I will develop the idea of digital literacy in the law curriculum. I will explain what I think it might mean as a broader context for the study of law: as a lens through which to develop knowledge, skills and attributes central to the discipline.

Friday, 6 June 2014

The future of legal education

Are lawyers prepared for the future?*

At the 2014 Australasian Law Teachers' Association conference, I will be participating in a plenary panel discussing 'Creating a Better Future for Legal Education'. In this post I outline some of my thoughts on this topic, in the hope that readers might share their own views and challenge my own.

My focus here will be on where I would like legal education to go in the next 10 years, and what changes legal academics need to make now to achieve that vision. In short, in my view legal education must challenge the existing silos of doctrinal specialisation and embrace the broader context of the law. This aligns with calls to break down barriers between university disciplines themselves, to deal with the 'big problems'.

Sunday, 1 June 2014

Educating the legal profession about gender

'The woman lawyer will bring justice to her profession'*

The recently released NARS Report is the latest in a long list of studies of the pervasive sexism in the legal profession. It makes a number of excellent and practical recommendations to facilitate women's engagement in legal practice and consequently their retention and advancement.

There are various arguments for the retention and advancement of women practitioners - from gender equality, to sustainability of the profession, to the administration of justice. Despite this, and the decades of recommendations on equality, the legal profession remains as sexist as ever.

This period of mounting awareness of sexism as a problem has coincided with what Thornton regards as a prevalence of the corporatized law school. This has accompanied the scaling back of the critical project as a feature of legal education, including gender perspectives in law. At the same time in higher education more broadly, women's studies as a discipline have been wound back.

In light of what seems to be an urgent issue for the profession, is it now time for legal education to integrate gender into the curriculum?

Sunday, 25 May 2014

Government largess & wealth

I saw somewhere online today a criticism that the majority of Australians receive government benefits. This was presented as a means of criticising those who do as 'leaners', pointing out that a minority of Australians are 'lifters'. Interestingly, the comment aggregated those on government 'benefits' and those who received their income from government jobs (ie public servants).

I suspect that by government benefits, the author meant both welfare as well as tax concessions. The argument, presumably, is one for smaller government and the promotion of do-it-yourself wealth. This kind of discourse tends to categorise those on 'benefits' as lazy and the public service as a bloated and unnecessary workforce.

In this post I point out why this is a lazy dichotomy that supports not an economic view but an ideological one. While I have written before about the subtext of 'lifters and leaners', here I use the very interesting and seminal work of Charles Reich from 1964, The New Property.

Saturday, 29 March 2014

Queensland to reintroduce gendered statutory language

On 19 March, the Queensland Attorney-General, Jarrod Bleijie, introduced the Crime and Misconduct and Other Legislation Amendment Bill 2014 to Parliament. The Bill is designed to respond to two inquiries into the working of Queensland's Crime and Misconduct Commission. The Bill has been roundly criticised - not least by Tony Fitzgerald QC, who has described it as 'a gross abuse of power'.

In this post however, I will examine the legitimacy of a lower profile change proposed by the Bill: the renaming of the head of the CMC from 'chairperson' to 'chairman'. See eg clause 35:
35 Amendment of s 224 (Qualifications for appointment as the chairperson)
(1) Section 224, heading, ‘as the chairperson’—
omit, insert
chairman and deputy chairman
(2) Section 224, ‘chairperson if’—
omit, insert
chairman or deputy chairman if

Thursday, 27 March 2014

Women's Property

The Married Women's Property Acts made a big change...but women's property remains an exception*

I have been doing some deep reflection on the progress of my thesis. I have concluded that my thesis question seems to have suffered a little from 'drift' away from my initial goal, to something that incorporated it but was perhaps a little different.

In my last iteration, I was looking at the doctrinal incoherence of constructive trusts... Indeed I was immersed in the intricacies of why across four common law jurisdictions (Australia, Canada, New Zealand and England) the law of trusts was uniform in recognising the 'intimate partner' constructive trust - and so a means of recognising women's separate property - but so diverse in the doctrine harnessed to deal with the 'problem' of women's separate property.

I've spent this last few weeks going back to basics. What was I really trying to show? My (bigger than PhD) idea is that the notion of property is itself inappropriate to deal with contemporary issues. I think property theory, in its liberal market mould, is unsuitable for our contemporary culture (copyright), for culture in its wider sense (first nations/Indigenous peoples' customary 'title') and it is most certainly unsuitable to deal with the huge issue of the environment, including of course, climate change. My PhD thesis is about the gendered nature of property and how it upholds the economic dependence of married women (married in a legal and de facto sense).

In my view, all property does is support the creation of a new market based on the idea of atomised, separated, individuals who are 'rational profit maximisers' and are in competition and unconnected with anyone else.

I'm not anti-capitalism - I agree that markets have created the circumstances for improvement in people's lives. But there must be a balance to the greed that accompanies unaccountable, unrelated, disembodied beings who exist in the eyes of the law (and economic theory).

So I have returned, in my thesis, to the roots of the question that first engaged me. I ask: is property gendered?

Here is a prezi that embodies my present thinking about how this argument might run. I'd be interested to hear your thoughts.

*image from https://ontariorealestatesource.wordpress.com/tag/women/

Sunday, 2 February 2014

Why the Great Barrier Reef should have legal standing

The Reef is under threat and needs our protection
Friday saw the announcement that the Great Barrier Reef Marine Park Authority ('GBRMPA') had approved dumping of dredging spoil within the boundaries of the marine park. This followed the Commonwealth's go-ahead for the construction of the world's biggest coal terminal at Abbot Point, off Bowen, to facilitate mining in Queensland's coal-rich Bowen Basin.

The decisions were made in the context of the Great Barrier Reef Marine Park Act which, under s2A (1) apparently aims to:
provide for the long term protection and conservation of the environment, biodiversity, and heritage values of the Great Barrier Reef Region.
Despite the Minister's assurances that the decisions have been made based on 'the science' and the dumping will be subject to rigorous conditions, the very fact of the decisions by both the Commonwealth government and GBRMPA call into question the real intent of the Act.