CLINICAL LEGAL EDUCATION

AGING, DISADVANTAGE AND CONSUMER CREDIT ISSUES - INVOLVING STUDENTS IN

RESEARCH

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

Ethical advocacy.

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

ownership of personal property to secure rights to be paid, under retention of title, hire purchase, consignment and lease transactions. Their status is likely to be re-characterised as that of a secured creditor. This paper examines the treatment of such transactions under the New Zealand Personal Property Securities Act 1999, with specific attention given to (i) the Purchase Money Security Interest; (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 Incorporation of Contractual Terms in Unsigned Documents-Time for a Realistic, Consumer- 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 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 , as long as they are aware there is writing on it, if they retain it for long enough to read it, the contract will be concluded after that time and will include all the terms on the ticket. The theory is that if they dont agree with the terms they can hand back the ticket and there is no contract. (If a particular term is onerous, the persons attention must be drawn to it for it to be incorporated).

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, (now confirmed by the results of behavioural research), that these tickets are rarely read.

In a recent case, EBay International AG v Creative Festival Entertainment Pty Ltd [2006]FCA1768 which involved over the counter sales of tickets to a rock concert, the court departed from this analysis. Rather than using established principles to determine the time of formation of the contract and incorporation of the tickets terms, the judge 4

realistically used the perceptions of the ordinary reasonable person. 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 case as a precedent is not weighty (single judge, 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. The test of the reasonable expectation of the consumer is applied usefully and without difficulty to, inter alia, the concept of merchantable quality( s71(1) and s66(3) of the Trade Practices Act), and the concept of what constitutes a defective good ( Part VA of the Trade Practices Act.) This preferable subjective standard should also be applied as a determinant of incorporation of terms in the context of unsigned documents. 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.

COLLUSION

OR

NOT? PITFALLS

IN PROVING PRICE FIXING UNDER THE

TRADE

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, arrangement or understanding that has the purpose or effect of fixing the price of any goods or services they supply. 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

Establishing a breach of the price fixing provisions of the TPA depends therefore on the apparently simple requirement that a contract, arrangement or understanding to fix prices can be shown to exist between competitor corporations. However, proof of the necessary contract, arrangement or understanding can be problematic. Indeed, actions brought by the Australian Competition and Consumer Commission for alleged price fixing within a range of industries have frequently failed on this point. 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 [2005] FCAFC 161 and ACCC v Leahy Petroleum Pty Ltd [2007] FCA 794.

Against the background of price fixing litigation in Australia, this paper analyses the recent APCO and Leahy decisions, focusing on the implications of these decisions for the ACCC in its prosecution of price fixing agreements. The paper considers the judicial interpretation of the terms contract, arrangement or understanding and the evidence, both direct and circumstantial, needed to prove that a contract, arrangement or understanding to fix prices exists.

PROMOTING FAIRER CONSUMER CONTRACTS: AN ASSESSMENT OF THE ALTERNATIVE

REGULATORY MODELS

Frank Zumbo The University of New South Wales

With the Productivity Commission currently reviewing Australias consumer policy framework, it is opportune to consider the issue of unfair terms in consumer contracts and, in particular, to assess the alternative regulatory models available to deal with this issue. In doing so, 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. 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

under such concepts thereby reducing significantly the impact that those concepts may have had in promoting fairer contract terms. 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. 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, along with clear guidance from the relevant enforcement agency, enhance certainty of consumer contracts by promoting transparency, clarity and fairness of contractual terms in a way that the existing concepts of unconscionability have been unable to do so. 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.

COMPANY LAW

POLICY

DEVELOPMENTS IN CONTINUOUS DISCLOSURE POLICY DEVELOPMENTS AND

INSIDER TRADING: PROVISIONS FOR THE FUTURE

Josephine Coffey The University of Sydney

The Australian Government, through the Department of the Treasury, has issued in rapid succession since the beginning of March 2007 a number of consultation papers. Each of these papers, either directly or indirectly, affects the implementation or enforcement of the continuous disclosure and insider trading provisions of the Corporations Act 2001 (Cth). On the 2 March 2007, the Parliamentary Secretary to the Treasurer, Chris Pearce, released the 'Insider Trading Position and Consultation Paper' with the aim of providing greater protection for investors against insider trading. 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'. 7

Public comments regarding all three papers were submitted in June 2007 and policy changes, with legislative amendments to be administered by ASIC, are a likely agenda to follow these reviews.

The incoming Chairman of ASIC, Tony D'Aloisio, in his 'Opening Statement on ASIC's Priorities for the Next 12 Months', presented to the Senate Standing Committee on Economics on the 30 May 2007, asserted that the focus would be on six priorities, the one ranked third would be monitoring and enforcing laws relating to insider trading, continuous disclosure and market manipulation. Is it in anticipation of tougher policies, in the vanguard of a public backlash if there is a market downturn, 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...to assess new investigation techniques, building on best practice overseas...both exchange traded products and over-the-counter markets for equities, 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. In particular, there are identical statutory debt subordinations provisions in both jurisdictions which subordinate shareholder claims in favour of ordinary creditors. 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. 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.

This paper assesses the prospects of the ramifications, if any, of the impact of Sons of Gwalia in the legal treatment of shareholder claims in corporate insolvencies in Hong Kong. A comparative assessment is made, noting material differences in the commercial landscape between the two jurisdictions, leading to the conclusion that the impact on creditors in Hong Kong will be minimal, if any, unless accompanied by other significant law reform.

SHAREHOLDER PRIMACY REVISITED: DOES THE PUBLIC INTEREST HAVE ANY ROLE IN STATUTORY DUTIES? Jason Harris, Anil Hargovan & Janet Austin University of Technology Sydney, & 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. 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. However, the general law and statutory duties are not identical. The remedies and enforcement mechanisms differ considerably, 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. 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. 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, even to the detriment of the public interest. We contest that viewpoint and argue that, at least in relation to statutory duties, directors and officers have obligations that extend beyond the narrow conception of the protection of shareholder wealth.

THE CONSTITUTIONALITY CRITICAL APPRAISAL Margaret Hyland

OF

ASIC'S

POWER TO ISSUE INFRINGEMENT NOTICES:

University of Western Sydney

The proposed paper will examine whether or not the current statutory provisions under Part 9.4AA of the Corporations Act 2001(Cth), which empower the Australian Securities and Investments Commission (ASIC) to issue infringement notices, are constitutionally valid. An analysis of the ASICs 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 schemes Constitutional validity.

A brief overview of the rationale for the introduction of infringement notices into the legislation will be given, clearly focusing on Parliaments purpose for introducing this provision. The ASICs 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. 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, which is not permitted under the Constitution.

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.

10

THE

POWER OF THE

AUSTRALIAN SECURITIES

AND

INVESTMENTS COMMISSION

TO

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). An enforceable undertaking is a promise enforceable in court. The alleged offender, known as the promisor, will promise the regulator to do or not to do certain actions. Accordingly, 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. This paper looks at the use of the enforceable undertakings by ASIC. 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 paper also surveys the promises given in an enforceable undertaking and the goals that may be achieved by these promises. Lastly, this paper reflects on the action that may be taken by ASIC if an enforceable undertaking is not complied with.

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.

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, use of the entity and its interaction with others. This paper, while acknowledging the 11

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 Treasurys 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 Commissions (ASICs) 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).

12

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.

13

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 Pantics 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

14

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.

FREE

AND

FAIR ELECTIONS

IN

BANGLADESH

AND THE

ILLUSION

OF

NEUTRAL

CARETAKER GOVERNMENT A.K.M. Masudul Haque University of Western Sydney

In Bangladesh, like many other developing countries, holding of periodic free and fair election, a precondition of democracy, remains a big challenge. Many elections have been boycotted by the opposition parties. Election related violence resulted in loss of lives and property. 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. Subsequently two general elections were held under these amendments. Both these elections were widely regarded as fair and free though the loosing side did complain about irregularities. The election was scheduled to be held on 22 January 2007. 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. The steps taken by the caretaker

government were popularly seen as breaching the neutrality. The ability to manipulate elections under the 13th Amendment resulting in recent chaotic events, declaration of emergency, postponement of general election etc clearly raise questions about the adequacy of such an amendment. In the wake of such events a new caretaker government has been appointed by the President. The appointment of the new government itself is seen by many as unconstitutional.

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. Moreover, formal legal provisions though 15

important should be seen as symbols of attempts to implement the law's underlying tasks, and, in the course of this, as providing political resources which individuals and groups can utilise to gain their ends. 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.

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. Together with this core legislation, the Chinese product

liability framework is comprised of the consumer protection law, the food hygiene law, the drug law, the advertisement law, and the rules and regulations formulated by various government authorities. Despite having a legal regime in place, Chinese consumers are not protected from defective, fake or substandard goods made in China. From times to times, major incidents regarding product safety hit the headline of local media. For instance, in 2004, at least 50 infants in Anhui province were killed by fake baby formula and 170 others had suffered from big-head disease. In 2006, 11 patients were killed after being injected with fake medicine. The pharmaceutical factory in Guangdong Province used diglycol instead of propylene glycol to manufacture the auxiliary material for injections. Recently, the issue of Chinese product safety is under the spotlight of overseas press. Thousands of pets in America were killed after eaten taint pet food. The pet foods in question have contained wheat flours laced with melamine which were imported from China. Toxic cough syrup which claimed 51 lives in Panama has linked to a Chinese company that passed off diethylene glycol as pure glycerine. America, Singapore, Hong Kong and Australia have either recalled, banned or issued warning over toxic toothpastes 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.

16

performance of the Arab Gulf states in addressing the problem of regional copyright piracy exceeds that of many of the western countries.

INVESTOR PROTECTION IN CHINAS SECURITIES MARKET Chenxia Shi Monash University

Chinas fulfillment of its WTO commitments since 2001 has gradually opened up Chinas securities markets and brought about changes in market regulation. However, Chinas 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. A fair and competitive market needs a well-structured and functional regulatory framework that protects investors and maintains their confidence in the market. Moreover, only effective enforcement of securities market regulations can ultimately protect investors. This paper investigates the regulatory and enforcement issues confronting Chinas securities markets and issues of investor protection. It firstly reviews the current regulatory framework, the current state of investor protection, the regulation of foreign investors, and then identifies flaws in the regulation of listed companies and stock exchanges caused by the tight control of China Securities Regulatory Commission (CSRC). It then discusses enforcement issues affecting regulators and investors. Finally it proposes reforms for regulation and enforcement as their vigor and effectiveness defines the extent and strength of investor protection.

17

CONSTITUTIONAL AND GOVERNMENT LAW

ELECTRONIC TRANSACTIONS ACT 1999:

FOR CHANGE?

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), a policy that may seem an unruly beast is the change catalyst needed to bring issues out and focus discussion.

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.

In reviewing some of the discussion around the policy proposal that resulted in the Electronic Transactions Act 1999 (the Act), the paper proposes that balance is required to ensure that taming does not result in legislation that supports particular ideology and agendas, thereby fettering and distorting the ultimate public policy and legal outcomes.

In doing so, 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, 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 identifies some of the outcomes and discusses whether, with the benefit of hindsight, it was an unruly horse or whether common sense and practicalities provided a balanced outcome to enable business and the community to use electronic

18

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.

FREE

AND

FAIR ELECTIONS

IN

BANGLADESH

AND THE

ILLUSION

OF THE

NEUTRAL

CARETAKER GOVERNMENT A.K.M. Masudul Haque University of Western Sydney

In Bangladesh, like many other developing countries, holding of periodic free and fair election, a precondition of democracy, remains a big challenge. Many elections have been boycotted by the opposition parties. Election related violence resulted in loss of lives and property. 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. Subsequently two general elections were held under these amendments. Both these elections were widely regarded as fair and free though the loosing side did complain about irregularities. The election was scheduled to be held on 22 January 2007. 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. The steps taken by the caretaker

government were popularly seen as breaching the neutrality. The ability to manipulate elections under the 13th Amendment resulting in recent chaotic events, declaration of emergency, postponement of general election etc clearly raise questions about the adequacy of such an amendment. In the wake of such events a new caretaker government has been appointed by the President. The appointment of the new government itself is seen by many as unconstitutional.

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

structure of the original constitution. Moreover, formal legal provisions though important should be seen as symbols of attempts to implement the law's underlying tasks, and, in the course of this, as providing political resources which individuals and groups can utilise to gain their ends. 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.

CONSTITUTIONAL REVISIONISM- WHAT RELEVANCE CONSTITUTIONAL ADVANCEMENT Ian Henry Victoria University

THE

PEOPLE

IN

RELATION

TO

In New South Wales v The Commonwealth [2006] HCA 52 the High Court upheld the Commonwealth governments right to control industrial relations through the use of the corporations power. The methodology by which this occurred can be compared to a racehorse running with blinkers on. In Pirates of the Caribbean The Curse of the Black Pearl, one group of participants in that film were bound to a particular code of conduct. However, when this code did not suit their requirements, the code was described as guidelines more than your actual rules. This seems to be the course of action the High Court has adopted in New South Wales v the Commonwealth. This does not appear to be an isolated incident in the application of the Constitution.

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.

20

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. I ask whether R. v. Brown is reconcilable with critical morality. Conduct should only be criminalised when there are critical moral reasons for doing so. The critical morality is about producing ethical and normative reasons to demonstrate that something ought to be the case. The classical critical principle used for limiting the scope of the criminal law is John Stuart Mills harm principle. The harm principle provides a necessary but not sufficient condition for criminalisation. Feinbergs harm principle differs to Mills in that it is not an exclusive ground for criminalising conduct. He supplements that harm principle with a further critical principle, which holds that morally wrongful offence to others is criminalisable in appropriate circumstances.

Consent is not an issue when the conduct merely involves minor harm or offence. I am concerned with consent in the context of gross harms (e.g., consenting to broken bones, blinding, death, etc.). In his two later volumes he makes it explicitly clear that legal moralism and legal paternalism are insufficient grounds for criminalizing conduct. Feinbergs principles are now the most widely accepted critical moral principles for limiting criminalisation. However, I question the weight that Feinberg gives to the concept of consent in the criminal law. In my paper, I outline a critical moral argument for limiting the scope of consent in the criminal law. I argue that R. v. Brown is reconcilable with critical morality, because there are certain rights (humanity as an end in itself) that a person cannot alienate.

21

TAMING

THE UNRULY CRIMINAL LAW:

WHERE

DO YOU DRAW THE BOUNDARIES OF

CRIMINAL CONDUCT?

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. For example, in some jurisdictions public nuisance, trespass, throwing things at a sporting match, photographing people in private places without their consent and BASE jumping from a building, are criminalised. 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. It is also a serious problem for members of the community who need to know the minimum standards of behaviour.

The unruly nature of criminal law has occurred because several principles underpin the decision to criminalise conduct. The unruly nature of criminal law has not occurred because the decision has been based on the toss of a coin. Rather than recommending the shrinking of the criminal law to tame it, this paper explores the principles underpinning the decision to criminalise conduct. Such principles include harm, immorality,

community welfare, 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, this paper will contrast criminal wrongdoing from civil wrongdoing from the perspective of the wrongdoing and compensation distinction, public and private distinction, and the essentialist distinction. Making these contrasts will help determine where to draw the boundaries of criminal conduct.

22

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. 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. 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. Wilful murder covers unlawful killings were the offender intended to kill the victim, whereas murder covers cases where the offender intended grievous bodily harm. In other Australian code and common law jurisdictions the offence of murder covers both these states of mind. 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. 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, was recklessly indifferent to causing death and where the offender killed but had a partial defence to an intentional killing, such as provocation or diminished responsibility. This paper will examine the case for reform of the law of homicide in Western Australia, 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.

23

THE NOT SO ORDINARY, REASONABLE PERSON OR THE MAN FROM CLAPHAM JUST GOT
OFF THE BUS

Ian Dobinson & Lesley Townsley University of Technology, Sydney

The subjective/objective approach to criminal liability is perhaps the most difficult aspect of criminal law to understand. This is not helped by what appears, at least, to be an inconsistent and often contradictory approach taken to legal definition and application. The focus of the research described in this paper is on one aspect of this subjective/objective divide, that being, the way in which the law uses the notion of a mythical reasonable or ordinary person as a benchmark, against which, certain aspects of the defendants liability are determined.

So-called objective tests are a component of the fault element of some offences, note for example negligent manslaughter, and many of the defences, see for example provocation, self defence and duress. Objective tests also form part of the conduct element of

offences, examples being reasonable forseeability as an approach to causation, the definition of dangerous for unlawful and dangerous act manslaughter and reasonable fear by a victim for psychic assault.

Our research, which is divided into two parts, 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. In order to begin to understand such complexities, the research undertakes an initial critical analysis of the criminal law as it relates to the reasonable or ordinary person. This is Part 1, and the basis for this paper.

Part 2, which is not yet complete, will address two principle themes, rationality and justice. While this will necessarily involve a critique of the work of others, we will attempt our own theoretical rationalization concluding whether on this basis change and/or reform is necessary.

24

EXTENDED COMMON PURPOSE: NOTES TAUFAHEMA[2007] HCA 11

ON

INTRIGUING SIDE ISSUES FROM R

Robert Hayes, Francine Feld & Adam Payne (research assistant) University of Western Sydney

The saga of Motekai Taufahema began in March 2002 when Taufahema, and the gang members who were with him in their vehicle, a Holden, failed to pull over when signalled to do so by Senior Constable Glen McEnallay. 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, not Taufahema. The saga continued from a joint murder trial aborted by the illness of counsel, through a subsequent trial of Taufahema alone, his appeal against conviction to the Court of Criminal Appeal, where he was acquitted of murder, and a Crown appeal to the High Court, where a new trial was ordered, to near conclusion on 27 May 07 with the DPPs acceptance of his plea of guilty to manslaughter.

By the time the case reached the High Court, the relevant issue was the appropriateness of the CCAs quashing of the conviction and acquittal of the accused as opposed to ordering a new trial. However, in the course of the saga, the following two side issues emerged:

examination of the scope of the common law doctrine of extended common purpose, developed to control gang participation in a so-called foundational offence, 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; and

assertion by the CCA of the proposition, to which there was no demur in the High Court, that failing to stop when signalled to do so by pursuing police could not constitute a foundational offence, because it is no offence against the criminal law, in particular, s546C of the Crimes Act 1900. 25

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 CCAs conclusion that failing to stop when signalled to do so by pursuing police involves no offence under criminal law in New South Wales.

The side-notes on Taufahema state the boundaries of extended common purpose at their maximum possible permissible limits, indicating that they potentially cast an unacceptably wide net. 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.

LAW AND PUBLIC POLICY: TAMING THE UNRULY HORSE? Andrew Hemming Charles Darwin University

In Hales v Jamilmira [2003] NTCCA 9, 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 Criminal Code (NT) was subsequently amended in 2004 to increase the maximum penalty from 7 to 16 years imprisonment.

In The Queen v GJ [2005] NTCCA 20, the victim who was promised to the defendant was just 14 years old and was brutally assaulted prior to anal intercourse. Following a public outcry at the sentence again being suspended after one month, the DPP appealed 26

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 NTCCA accepted that the head sentence was manifestly inadequate and referred to R v Wurramara (1999) 105 A Crim R 512 at [26]:

The courts have been concerned to send what has been described as the correct message to all concerned, that is that Aboriginal women, children, and the weak will be protected against personal violence insofar as it is within the power of the court to do so.

In August 2006, the Northern Territory Government set up a Board of Inquiry to report on allegations of sexual abuse of Aboriginal children. The Boards report has just been released (15 June 2007) and it found that child sexual abuse is serious, widespread and often unreported.

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.

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. However, the report did discuss submissions from the Director of Public Prosecutions and the Northern Territory Police Force.

One of the DPPs 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. The Board of Inquiry supported such an amendment.

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 Board of Inquiry found that the answer lies not in removing the 27

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).

The factors a court is to take into consideration where an alleged sexual offence has been committed against a child include: the childs age, the alleged offenders age, the familial relationship between them, their respective present and proposed living arrangements, the need where possible to leave the child in situ, and the wellbeing of the child ( Recommendation 35).

While recognising that a court of law is a blunt instrument for dealing with widespread social problems, the focus of this paper will be to examine, in the context of sexual abuse of children, 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.

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, with some calling for its control and/or elimination from sports, while others perceive it as inevitable results of participation. In the past, the control of participator violence was the responsibility of sports governing bodies, referees, and disciplinary tribunals. However, in recent years, the criminal laws are being used to seek redress by victims of participator violence. 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. It is also becoming increasingly clear that sports participants are reluctant to accept that all of their injuries were either consented to, or are necessarily integral and inevitable consequences of participating in sports. In cases where the perpetrators of sports field injuries are deemed to be at fault, they expect to receive

28

some sanction or punishment from their sports governing bodies, referees, or disciplinary tribunals, and with increasing regularity, the intervention of the criminal law. The paper addresses the criminalization of sport participator violence that results in injury. The criminal process, the nature and types of offences committed, and the defences available, and the likely results of litigation are assessed. 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.

PUTTING MENTAL INCAPACITY DEFENCES TOGETHER AGAIN Arlie Loughnan The University of Sydney

Defences deny liability or responsibility (or both) for criminal offences. Categorization of some defences as mental incapacity defences, or mental condition defences, is commonplace in criminal law scholarship. This category of defences features in academic monographs and in a number of criminal law textbooks. Yet, the parameters of this category of defences vary considerably. For example, in some instances, the category encompasses only affirmative defences, while in other cases it extends to cover putative defences such as the defence of intoxication. 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, diminished responsibility and infanticide) or broad construction (including intoxication and automatism). What it is that unites mental incapacity defences qua mental incapacity defences seems either elusive or contested. This paper argues, properly understood, mental incapacity defences encompass those defences in which, on the one hand, exculpation (or partial exculpation) rests on the defendants abnormality and, on the other hand, which are not structured around the reasonable person standard. This means that the category of mental incapacity defences includes the defence of automatism but excludes the partial defence of provocation. In making this argument, this paper draws on the UK jurisprudence on mental incapacity

29

defences, in particular, the recent House of Lords decision, R v Smith (Morgan) [2001] 1 AC 146.

CYBERCRIME@NZ: CRIMES INVOLVING COMPUTERS4 YEARS ON. Wayne Rumbles The University of Waikato

New Zeland is relatively a latecomer in the criminalisation of cyber-crime, 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.

The amendments to the Crimes Act were not without criticism from both the computing and legal communities. Much of the criticism of the amendment was aimed at the use of broad, vague or uncertain terms; four years on and the Courts have begun to define, contract and some cases expand the meaning of these statutory terms. 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.

The computer security and network engineer communities raised concerns that the amendment would criminalize legitimate activities aimed at ensuring a secure, robust and stable network. 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. 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, but rather he was charged under the theft provisions of the Crimes Act for stealing internet access. This paper will consider possible ramifications of the Davies cases in criminalizing the non-criminal use of network resources.

30

IS

THE VICTIM TO BLAME?

CURRENT

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, the influence that they have on each other and the difficulties that can arise. There have been some examples recently which highlight the strain between the two. 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. 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. Over the years both defences have undergone change through interpretation in cases and through legislative amendments. Tasmania abolished the defence of provocation in 2003 and Victoria followed in 2005. Other Australian jurisdictions as well as New Zealand, Canada and the United Kingdom are considering or have made reforms. This has been to some degree in response to cases which have caused concern amongst the public as well as governments. 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 paper seeks to consider whether the defences are still relevant or should be abolished or modified and reformed. Gender and cultural bias is also to be considered.

31

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. Tasmanian students were given one side of a role play and Macquarie students the other side. They were given their opposing students email addresses and had one week to conduct the negotiation by email. 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. Students submitted a record of their negotiation and a reflective journal about their experience of the process. Following the exercise students were also surveyed about the impact of the simulated on-line negotiation on the learning objectives of students. This paper discusses what worked well and what could be improved about the exercise. It also evaluates the students survey responses and the impact of the exercise on students learning outcomes.

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. Students of mediation very rarely understand the process and the skills needed to conduct a mediation until they are sitting in the mediators chair and trying it out for themselves. experience. Most mediation courses use roleplays to give students this

However, very little consideration has been given to how trainers can Drawing parallels with the

effectively coach students through these role plays.

32

architectural design studio, this paper seeks to develop a model of best practice for mediation coaches.

ENVIRONMENTAL LAW

IDENTIFICATION AND DISCUSSION OF THE REQUIREMENTS FOR AN EFFECTIVE CARBON TRADING REGIME
IN

AUSTRALIA: A COMPARATIVE APPROACH BETWEEN

AND A

THE

EUROPEAN UNION EMISSION TRADING SCHEME EMISSION TRADING SCHEME Caroline Hart University of Southern Queensland

POSSIBLE AUSTRALIAN

Proposals for emissions trading schemes are being advanced by both the Australian Government and the State and Territory Governments. While the Australian

Governments proposals appear hastily drafted, the State and Territory governments have put forward a proposal demonstrating possibility. Meanwhile, the European Union has already implemented an emissions trading scheme, with stock exchanges in Europe gaining status as major carbon traders. 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, including the scope of such a scheme; allocation of emission allowances; greenhouse gas permits and monitoring and reporting; transaction registries; and compliance and enforcement. As part of the discussion, this paper

identifies the institutions and property rights needed to support an emissions trading scheme. The European Unions 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.

33

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 II outlines the proposed Australian emissions trading schemes. Part III outlines the European Unions emissions trading scheme, including an example of legislation passed by Member State, the United Kingdom, Part IV analyses the implementation of the EU-ETS. Finally, Part V concludes with a summary of proposed recommendations for the development of an Australian emissions trading scheme (an AU-ETS).

INTRAGENERATIONAL EQUITY

KEY CONCEPT

IN

THE

UNITED NATIONS

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, Protocol to the United Nations Framework Convention on Climate Change (Kyoto Protocol). 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. This cooperative action has become more urgent due to the likely faster advance of climate change than was originally anticipated.

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, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities. Accordingly, the developed country Parties

should take the lead in combating climate change and adverse effects thereof.

34

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. Global environmental climate protection will not succeed without the support of both developed and developing countries. 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. It is argued in this paper that the successful implementation of the UNFCCC will depend, in part, upon the resolution of the issues arising over the application of intragenerational equity, particularly as between developed and developing States.

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, the Mining, 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. Some argue that these initiatives are merely green washing. The mining companies argue that they are designed to achieve best practice, regardless of whether the mine is situated in a developing or developed country.

This paper will discuss the role of such initiatives in terms of their impact on environmental compliance. It will particularly focus on the actions of the worlds largest mining companies in developing countries. To this end, case studies of mines in Interestingly, the environmental

Tanzania and Papua New Guinea will be utilised.

protection legislation in these jurisdictions has been drafted with the assistance of Western Australia and Victoria, respectively, and has the same sustainable development commitments. Yet, for a range of reasons, the implementation of the legislation varies from these Australian jurisdictions. Indeed the focus of the Tanzanian and Papua New 35

Guinean governments tends to be more on the social, rather than environmental, impacts of the mines.

The paper will consider whether the major mining companies are complying or indeed going beyond compliance with the environmental laws in developing countries, 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, or independently as watch dogs have played in this outcome. Are the top tier miners (at least) the unruly horses that they have been portrayed as in the post Ok Tedi world, 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, the Resource Management Act 1991 sets out the guidelines for decision-making in respect of all development, 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. Certain changes have been made to the purposes of the Resource Management Act to give support to the utilisation of renewable energy. 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 paper discusses various decisions of the Environment Court which have determined whether or not consents should be granted for wind farms in particular locations.

36

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. 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. A statement could bring a degree of stability to the present competition between the various power companies in the development of wind farms.

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. Public concern is closely associated with the nimby and banana principles. 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 paper will look briefly at the factors which appear to contribute to public concern, for example, the exotic nature of the hazard, the degree of scientific uncertainty, the vulnerability of those involved, such as children. 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. The leading case in planning law across the Australian jurisdictions being Broad v Brisbane City Council [1986] 2 Qd R 317.

The result of this analysis is that unless the fears of the public are based on sound scientific evidence, the weight or sincerity of public concern will not carry the day nor will the precautionary principle. Is this the correct approach in 21st century democracies? There is an argument that legislation, planning instruments or the courts and tribunals should elevate public concern as a factor which, independent of scientific support, should be taken into account and 37

play a decisive role in planning decisions. There is a UK Court of Appeal decision and an Queensland Planning & Environment Court decision which point in this direction. These are examined as well as some suggestions of how planning legislation might be amended to incorporate greater recognition of public concern.

CLIMATE CHANGE, HARMONISATION, AND PUBLIC POLICY Trevor Daya-Winterbottom The University of Waikato

Climate change provides a unique challenge for all governments. Both the global scale of the issue and specific domestic responses transcend jurisdictional boundaries.

For example, 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 Zealands obligations under the Protocol.

The NZ Government also provided for Negotiated Greenhouse Agreements as a mechanism to exempt firms and industries from the proposed carbon tax that would, as a result of the tax, face significant risk to their competitiveness relative to producers in jurisdictions with less stringent climate change policies.

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.

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, which now provides the basis for environmental regulation by the member states.

38

Most recently the Australian Commonwealth Parliament has reported on the need for harmonization of legal systems to remove barriers to trade both within Australia, and between Australia and New Zealand. That report focused on commercial law, leaving the debate on harmonization of environmental law for bodies such as the Environmental Roundtable of Australia and New Zealand to pursue.

Safeguarding against economic distortion and reducing the barriers to trade are significant public policy issues. The debate about them involves matters of constitutional and economic importance.

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, the related constitutional and economic arguments, and the European experience in developing common policy on such matters.

EQUITY AND TRUSTS

PROBLEMS WITH THE CLASSIFICATION OF DISCRETIONARY TRUSTS Jason Harris University of Technology, 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. 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. 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, particularly the 39

analytical problems posed by so-called hybrid trusts. This paper will discuss these cases for the purpose of critiquing the traditional fixed/discretionary dichotomy in trusts.

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. First, 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. Australian law schools teach ethics-as-law. Furthermore, law schools compress the teaching of legal ethics to one single subject in the whole of the undergraduate degree. Australian law schools teach legal ethics discretely.

Secondly, the paper calls for the adoption of a new understanding of legal ethics as the capacity to exercise legal ethical judgment. 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. Further, 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.

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, and subsequently received some attention in Australian literature. However, there is little published material to demonstrate that the idea has 40

successfully been implemented in Australian law schools (or elsewhere, for that matter), or that the implementation of pervasive ethics learning opportunities has led to better student learning outcomes. Nevertheless, the rationale for across-the-curriculum ethics engagement remains compelling, especially when law graduates understandings of ethical responsibility remain uncertain or even doubtful. This paper reports on a modest proposal to create ethics learning opportunities in 10 core subjects in the legal curriculum, together with some of the difficulties in implementing such a proposal.

ARE LAWYERS REGULATEABLE? Duncan Webb University of Canterbury

Considerable academic debate has raged over whether lawyers can or should be left to regulate themselves. The pendulum in this respect seems to have swung away from self regulation to varying degrees and methods of state intervention.

This paper asks a more demanding question are lawyers regulateable at all. There is an argument to be made that for several reasons any regulatory regime imposed on lawyers is doomed to fail. Most obviously lawyers are experts at manipulating and subverting rules. However, there are numerous other aspects of the nature of law, the lawyer client relationship, and legal problems which mean that at the very least regulating lawyers is challenging.

An exploration of how and if those challenges can be met will be undertaken.

41

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'. 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. This is to be achieved through mandated family dispute resolution, largely undertaken by newly created Family Relationship Centres. This paper questions whether that 'cultural shift' will appropriately meet the needs of separating families within culturally and linguistically diverse (CAULD) communities.

The inquiries which preceded the reforms and the amendments overtly identified the importance of culture to the parenting and well being of children. However, 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. In some cultures a shared parenting regime would be inconsistent with cultural expectations. 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. 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, 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. 42

MAINTAINING VULNERABLE DEPENDANTS: THE EMERGENCE SUPPORT SCHEMES Kay Maxwell University of Wollongong

OF

VOLUNTARY

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. While much of this interest has centred on social welfare and compulsory support schemes, the ways in which parents and other carers might voluntarily support their dependants has received far less attention. However, times may be changing. 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 particularly to the rights of disabled children, as evidenced in the 2006 United Nations Convention on the Rights of Persons with Disabilities. The convention, to which Australia is a signatory, represents a paradigm shift in attitudes and approaches to persons with disabilitiesIt 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, and where protection of rights must be reinforced. While the Convention is largely concerned with social aspects of these rights, it is significant that article 12(5) of the Convention specifically addresses the financial rights of disabled persons, 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.

This paper will consider the emergence and role of voluntary schemes for the support of vunerable dependents and, in particular, those dependents who are disabled.

43

REFORMING CHILD SUPPORT LAWS- 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. Big changes are planned for 2008 to help it celebrate its third decade. Much admired and much maligned, 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.

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. Despite its relative infancy, the scheme has been the subject of numerous government-sponsored reviews that have resulted in change. 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. While the formula itself has been tinkered with over the last decade, the time was probably right for it to be overhauled for its third decade.

This paper will provide a brief overview of the child support reviews that have occurred over the last two decades. 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, including the new child support formula. 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.

44

OUT OF TIME... NO WORRIES? THE DISCRETION TO ALLOW THE LATE COMMENCEMENT OF FINANCIAL PROCEEDINGS FOLLOWING RELATIONSHIP BREAKDOWN Geoff Monahan University of Technology, Sydney

While policy currently delivers different legal outcomes for married and unmarried relationships, one area of shared policy is that financial relationships between domestic partners should, wherever possible, be brought to finality within a reasonable period of time after the relationship ends. Nevertheless, the law also provides a judicial discretion to allow an out of time application to be determined. While it remains appropriate for an applicant to address the issue of the delay in the commencement of late proceedings, there is recent judicial comment that this is not mandatory and that the focus should be on hardship issue alone.

This paper will examine how the courts have interpreted their discretion to allow an out of time application following relationship breakdown.

CHANGES TO THE PRACTICE OF FAMILY: THE ROLE OF COLLABORATIVE FAMILY LAW PRACTICE AND THE INTERDISCIPLINARY PRACTICE POSSIBILITIES. Marilyn Scott University of Technology, Sydney

The current changes being implemented in the approach to and conduct of family law matters will bring great challenges to, and may even signal the eventual demise of, traditional family law practice. These changes include a shift from a lawyer-focused approach to a client-centred one, with the establishment of the Family Resolution Centres (FRC) and the establishment of Family Dispute Resolution Practitioners as gatekeepers to the Family Court. 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. The interdisciplinary approached, 45

premised on an emphasis on some kind of ongoing and functioning social relationship between divorcing clients and their families, is dependent on professional re-tooling the way the allied professionals practice together. It also requires a cultural change in perceptions about professional boundaries in family law practice. Subsequent to recent research conducted in New South Wales, the ACT, Ontario, California and Cambridge (UK), 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.

FAMILY RELATIONSHIP CENTRES: STUDY

CHANGES IN FAMILY DISPUTE RESOLUTION

IN

APPLICATION

OF

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. From 1st July 2006, 15 Family Dispute Resolution Centres (FRC) commenced operation around Australia, including one based in Darwin. The Darwin FRC is run by a consortium between Relationships Australia NT (RANT) and Anglicare NT through its Resolve Family Dispute Resolution division (RFDR). The operational model for the Darwin FRC was that of community development and capacity building, both in its family dispute resolution services and in its family/relationship strengthening services. The latter would include referrals to appropriate agencies for relationship counselling and parental education programmes, including post-separation parenting.

RANT and RFDR contribute substantially to the family dispute resolution service delivery for the FRC through a sub-contracting arrangement. The FRC, RFDR and RANT have a Memorandum of Understanding, reviewed quarterly, guiding the arrangement. 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, while RANT has

46

done so for some 5 years. For the majority of clients, pre-FDR interviews and FDR conferences are conducted at the agencies premises rather than those of the FRC.

The paper will explore the Darwin FRCs experience of a previously untapped client base, the provision of FDR in highly complex cases, the management of FDR when there is family violence identified, 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).

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

47

Abolishing the entry permit system to Aboriginal reserves for common areas, road corridors and airstrips

This paper will explore the executive and Constitutional power of the Commonwealth to undertake the measures announced, including reference to the Territories power, the external affairs power, the power to make laws for the people of a race and the power to acquire property on just terms. It will evaluate the measures in the light of International law, including the Convention on the Elimination of Racial Discrimination, the International Convention on Civil and Political Rights, the Convention on Economic and Social Rights and the Convention on the Rights of the Child. Any legislation introduced by the Commonwealth to authorise the measures will be examined according to those Constitutional restraints and International law standards.

PROOF OF NATIVE TITLE IN AUSTRALIA, 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. Promising though this legal position may sound the task of obtaining that recognition in the courts is an arduous one. 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.

In this paper we compare and contrast proof of native title in Australia, United States of America, Canada and to a lesser extent New Zealand considering such aspects as historical background, recognition of native title, nature of native title, ancestral homelands, elements of proof of native title, particularisation of laws and customs and the bundle of rights argument, normative societies, changes to traditional laws and customs and continuity and abandonment. It will be shown that historical and political 48

factors combined with jurisprudential developments have resulted in Indigenous people in Australia having a particularly difficult task, relatively speaking, in proving native title in the courts.

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, if only because of the discomfort that many Aboriginal people feel with academic priorities or Australian teaching loads. At least in cities like Canberra, 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 - including, presumably, where an Aboriginal teacher deviates from those expectations. 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, ANU's 'Race and the Law' course suggests that a more broadly-framed curriculum, containing considerable material on indigenous issues, has three advantages. First, it justifies an explicit focus on the law's role in constructing and protecting 'white' identity, rather than an obsessive focus on a tiny minority, and this can assist majority students to understand law's role in this context. Secondly, it allows consideration of the construction of identity through privilege, not just discrimination and disadvantage - an angle sometimes difficult to inject into 'indigenous' courses. And thirdly, it seems to attract larger numbers of minority students, producing a classroom much more representative of the global population than usual. This brings a depth of experience of racialised identities which is very valuable for student learning.

49

INDIGENOUS PARTICIPATION

IN

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. Specifically, 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.

This examination is pursued in two themes. 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 first is Aboriginal freehold under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth.). The second tenure are rights pursuant to a determination of native title under the Native Title Act 1993 (Cth.) on land the subject of a pastoral lease granted pursuant to the Pastoral Land Act 1992 (NT).

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. 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. In particular, the requirements under the Protocol for carbon sequestration mechanisms to qualify for credit under the trading scheme.

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. However, the paper also concludes that this result is not possible under trading schemes bound by the current terms of the Kyoto Protocol. In turn this suggests there may be need 50

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.

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. The case was Meskenas v ACP Publishing Pty Ltd, decided in August 2006 in Sydney. The parties and the Magistrate faced a somewhat difficult task, since no Australian precedent existed that would have elucidated the operation of the rights in this instance. In the event, the Magistrate found in favour of the applicant, 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 decision is a welcome one for arts communities worldwide. It is necessary, however, to make some comment on the reasoning process used in the decision-making. It displays some anomalies which it would be a pity to see reproduced in future cases. One possible reason for these anomalies, 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. 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.

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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.

Although existing laws do not comprehensively address the practice of ambush marketing, we argue that there are sound reasons for this and that specific legislation needs to be introduced with caution. In particular, existing legal regimes such as competition law, consumer laws, and intellectual property laws, which have traditionally been used to address marketing issues, have always maintained a balance between individual freedoms, the public good, and state regulation.

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. The paper compares the Bill with ambush marketing legislation in the United Kingdom and South Africa. We conclude that the Bill is over-broad, unduly restrictive and that it cannot be justified in its present form.

COPYRIGHT AS INTELLECTUAL PROPERTY Geoffrey Hart The University of Sydney

Since the Statute of Anne 1709, the basis of British copyright law has been property. The essence of property in a modern market economy is the right to exclude others and the right to transfer the property. 52

In Australia, the Copyright Act 1968 (Cth), grants exclusive rights to the copyright owner (ss 31, 85-88) and also a right to alienate these (s 196).

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.

The property concept, combined with excessive duration, can severely prejudice both the creative individual and the public interest. Instances abound where the alienation of copyright has served the interests of entrepreneurs such as publishers, to the detriment of authors and the book-reading public.

The property concept was introduced in the Statute of Anne at the behest of publishers. They sought to distinguish copyright from other monopolies which by that time had fallen into disrepute. Copyright lasted 14 years in the first instance and, if it had been

assigned, the rights then reverted to the author, if he were still living. In subsequent statutes, and the duration of copyright in works was extended to the author's life plus 50 years, now 70 years in Australia, Europe and the USA. 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. 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 normal function of property has been to allocate resources where there is a natural scarcity. Copyright, however, creates scarcity where it would otherwise not exist. It is doubtful whether such a contrived scarcity has ever benefited the public interest, but it is even less justifiable today when the new technologies are making information far more accessible to the community.

53

THE EC-AUSTRALIA WINE LAW AGREEMENT, 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.

On an International level, Australias strategic evolution in combining collaboration and competition as a New World wine producer has replaced the merely competitive relationships of the past. 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.

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, and soon to be finalised Bilateral Agreement. Firstly, 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, as defined by Geographical Indications which are recognised, amongst other things, as important brand marketing tools and arguably increases the wine exporting opportunities for Australia.

While Australia has lead the way in policy and legislative reform amongst other New World wine growers, including South Africa and USA, there have been both negative and positive impacts resulting from the overlap and conflict between existing Trade Mark laws and Geographical Indications. A fine line remains in progressively developing elements within the current collaborative architecture, developed by Australia, to ensure that it is viable on an International and National fore both in an economic, policy and legal sense. 54

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, 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. That promise was realised in the Copyright Amendment Act (Cth) 2006, and since 1 January 2007 a defence exists if an infringement of copyright was a fair dealing for the purpose of parody or satire. This paper explores the new parody or satire defence. It considers the diverse definitions of parody or satire and the variety of practices that could (or may not) constitute parody or satire. The paper contrasts the Australian position with overseas jurisdictions, particularly the USA, where fair parodies are permissible under the US fair use defence. 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, but that the introduction of a broader defence of transformative use was warranted.

ALL THE COLOURS OF THE RAINBOW: A REVIEW OF RECENT JUDICIAL DECISIONS IN

RESPECT OF THE REGISTRATION OF CERTAIN COLOURS AS TRADE MARKS.

David Price Charles Darwin University

Ss. 6 and 17of the Trade Marks Act 1995 (Cth) provides that colour, amongst other signs, may be registered as a trade mark. However, recent developments in the registrability of colours as trade mark have demonstrated that the matter is far from being clearly painted.

Two longstanding cases in particular have illustrated this ongoing volatility.

55

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. Its application has met with opposition from Woolworths, which also uses a shade of green with other colours in its supermarket fuel outlet franchises. BP recently failed before the Full Federal Court in its latest attempts to secure registration of its shade of green, under the provisions of the Trade Mark Act.

Cadbury Schweppes, on the other hand, 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. 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.

This paper examines the implications for colour registrability for trademark registration, drawing upon other examples from Australian, US and European jurisdictions. 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, despite there often being no mention of the ability to do this under copyright legislation. In addition to the use of public policy in reading down legislation, the courts have used public policy to find that because of a works content or the copyright owners conduct, no action will lie or if an action does lie, remedies may not be forthcoming. Notwithstanding the long tradition of using public policy to regulate copyright, the 56

courts use of public policy has been criticised. The arguments made against the use of public policy are many and varied: it leads to vague and arbitrary decisions; creativity will be stifled and so on. 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. In this article I argue that public policy serves as a vital and legitimate release valve for copyright. It is needed now more than ever before.

INTERNATIONAL LAW

THE INTERNATIONAL LEGAL SYSTEM: AN UNRULY HORSE? Michelle Sanson University of Technology, Sydney

Aligning with the conference theme, this topic considers the public policy and broader political dimensions to the international legal system. Specifically, the prevailing system of international law is situated historically from the development in 1648 Treaty of Westphalia of state sovereignty. Contemporary pressures for change from the 20th century experience are identified, including the difficulty in controlling the behaviour of global companies, the increasing calls by global civil society for greater involvement, and the recognition that some global issues are simply beyond the power of individual states to resolve. These contemporary pressures are used to highlight the problems of the international legal system in a globalised, interdependent world. The sovereignty paradox is identified, 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. It is proposed that a paradigmatic shift is necessary, whereby the pooling of sovereignty is seen as an investment by states rather than an expenditure, as it is currently viewed. It is proposed that innovative approaches to the pooling of sovereignty, as seen in the European Union, the International Criminal Court, and the World Trade Organization, may serve as useful examples for the future of global governance. This topic is drawn from the authors PhD research on global governance, which is entering the examination process.

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THE AFRICAN EXPERIENCE OF THE WTO DISPUTE SETTLEMENT SYSTEM Michelle Sanson University of Technology, 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. Not a single dispute has been brought by an African WTO Member, 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 dont 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. Based on research and interviews in fifteen African countries plus at the WTO and NGOs in Geneva, this paper identifies four cumulative barriers to access for developing countries in the WTO, and proposes ways in which they can be addressed. These barriers are characterised as (1) cost and expertise; (2) domestic mechanisms; (3) remedies; and (4) politics and priorities. Specific focus is given to the US-Cotton decision, 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, AIDS drugs, and trade preferences, and refuses to comply with legally binding decisions against it.

LABOUR LAW

THE IMPACT OF THE FAIRNESS TEST ON BARGAINING Carolyn Sutherland, 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

relations system in 2006. The new rules removed the no disadvantage test and important procedural requirements which ensured that employees had genuinely consented to agreements. In response to mounting community concern about the use of workplace agreements to erode employee conditions, the Howard Government has introduced a new Fairness Test which substantially changes the legal framework for agreement-making.

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, and will refer to some of the evidence which has emerged about bargaining outcomes during the first year of operation of Work Choices. 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.

LAW AND COMPUTERS

A NEW INSTITUTIONAL ECONOMICS ANALYSIS DOMAIN NAME SPACE John Selby Macquarie University

OF THE

GOVERNANCE

OF THE .AU

This paper examines the governance of the .au (Australian) country-code Top-Level Domain since 1986. After a relatively non-controversial start, this period involved a significant increase in the awareness by stakeholders of the increasing value of the .au domain (as a resource), 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 paper analyses the structure of the .au domain industry, applying transaction cost analysis to explain institutional change in the .au policy-control body and highlights how government preference for buying in regulation rather than making it underpinned elements of that institutional change.

59

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, present and future, of the Corporations Amendment (Insolvency) Bill 2007, placed before the House of Representatives on 31 may 2007, (debate since adjourned) are considerable.

The proposed Act has five reformist themes ( and an 82 page explanatory memorandum! 1. Improving outcomes and additional information for creditors, through enhanced protection for employee entitlements, and a revised statutory pooling procedural process. 2. Deterring misconduct by corporate officers, with additional regulatory requirements for corporations and new insolvency practitioner information reporting provisions. 3. ASIC registration and disciplinary procedures for Insolvency Practitioners. 4. Enhancing the economic efficiencies of the existing Voluntary Administration procedures. 5. The adoption of the UNCITRAL Model Law on cross-border insolvency.

Each of these themes presents new challenges to existing corporate protocols.

This paper examines the substantial interface between the adoption of the procompetition ethos in tertiary-level economies and the strategic management of corporate insolvency, including the role of the law in restructuring processes in transnational insolvencies. In the legal and corporate governance contexts, reviews by regulators and domestic courts of the notions of public benefit and detriment must consider not only the legislative enactments, but also difficult concepts of sector-specific economic efficiencies, competing financial interests and the supervening complex constitutional 60

constraints. Judges, Lawyers, Regulators and Corporate Officers will require higherlevel specialist law and economics training to implement the legislation. The main question posed is the appropriate future proper role of the law in taming developing economic complexities.

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, recovery of compensation for an outcome which 'probably' would have occurred anyway was always going to be controversial. Since the recognition of the availability of compensation for loss of a chance of a better outcome in Rufo v Hosking, there has been a great acceleration of interest and court attention to recovery for 'loss of a chance'. The recent flurry of cases in NSW go some way towards creating a framework for this area, 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.

This paper will discuss the decided cases on loss of chance in medical cases, summarise the current law in this area and identify issues which remain undecided.

REGULATING VOLUNTARY EUTHANASIA AND ASSISTED SUICIDE Katrina George University of Western Sydney

Although they remain criminal offences in Australia, euthanasia and physician-assisted suicide are still practised in this country and some research suggests at rates higher than 61

in even the Netherlands. The evidence points to a culture of deception, where patients are at risk from a lack of medical professionalism and hidden decision making.

Many argue that legalisation in some form is the better option for controlling these practices as they would be more visible, doctors more accountable and patients better protected. But legalisation also carries its own risks.

This paper looks at the highly contested research about the incidence of non-voluntary euthanasia in the Netherlands where assisted death is legal. There is some evidence of a significant increase in taking life without patient request since legalisation. However, it is far from certain whether patient autonomy is any better safeguarded under prohibition.

Notwithstanding its limitations, prohibition could have one advantage over legalisation: the control of ethical values concerning the taking of life. 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 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.

MENTAL ILLNESS

AND

DANGEROUSNESS: WHY

THE

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. 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. 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

62

but for some aspects of their illnesses which reduced insight and capacity, and increases the rate of hospitalisation of patients who are not at risk of serious harm.

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 OConnor v Donaldson in the US Supreme Court (Stromberg & Stone 1983) and the Winterwerp case in the European Court of Human Rights (Dressing & Salize 2004), and to the influential film One Flew over the Cuckoos Nest (1976).

In reality, mental health reform was both inevitable and necessary. Arguments for change derived from ethical concerns about custodial care without treatment, the cost of detaining almost one half a percent of the population, the advent of antipsychotic medications making community management possible, and the widely held belief, expressed even by some psychiatrists, that mental illness was a self serving medical myth and that psychiatric hospitals were little more than jails.

Overdue reforms in the 1970s and 1980s included requirements for procedural fairness and transparency, the right to treatment, and measures to encourage the use of community care. The purpose of such reforms, clearly documented in a report following a WHO survey of international mental health legislation (Harding and Curran 1979), included both a desire to protect the public from potentially dangerous, psychotic patients and to reducing the numbers of chronically hospitalised patients. A response to these seemingly contradictory aims was to formulate legislation that required that involuntarily detained patients be a danger to themselves or others. The danger-criterion was adopted all but three European countries (Dressing and Salize 2004), every State in the USA (Appelbaum 1997) and jurisdictions within the Commonwealth of Australia, as well as a large number of other countries including Canada, Israel, Russia and Taiwan (Appelbaum 1997). In some jurisdictions there are other criteria for admission such as a need for treatment criterion, but in many jurisdictions world-wide, the danger criterion is obligatory for civil commitment.

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In this paper we argue: that use of the danger criterion alone has resulted in inequitable access to care; 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; and that these reforms have had the subtle effect of reorienting psychiatric practice towards the management of risk, which we believe is demonstrably impractical and comes with a significant opportunity cost.

We conclude that the danger criteria should be removed from MHAs and its implicit requirement for risk assessment should be disregarded, 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, and (2) those who are merely perceived to be in class of dangerous people but may or may not be dangerous.

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. Just four years later, in December 2006, this same legislation was amended, reversing the prohibition on therapeutic cloning, while retaining the ban on reproductive cloning.

The Prime Minister, sensing the political mood, allowed a conscience vote. This contrasted with his decision several months earlier, against introducing any changes to the 2002 Act, despite 54 Recommendations having been made by a Statutory Review Committee. Opponents of the Bill used the slippery slope argument, fearing unintended consequences. Proponents of the Bill were influenced by the hope of finding cures for debilitating diseases, the threat of a scientific brain drain, and the modest increment to

64

what had been decided in 2002. Gender played a vital role, as women voted overwhelmingly in favour of the Bill. Approval of the legislation had as much to do with the careful drafting of the provisions as with any rational, social, or scientific factor. The legislation is narrow in scope, retains an absolute prohibition on reproductive cloning and contains strict regulations with heavy criminal penalties. The Act requires a review after three years. A number of questions remain. Will Parliament be asked to extend the legislation further? Does stem cell research demand a global, rather than a local approach, 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, 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.

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), 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. The effect of that legislation was to preclude the appellant from using the frozen embryos produced by

65

herself and her former partner through ART during a happier phase of their relationship, despite dramatic changes in their emotional and reproductive circumstances.

The Evans case can be compared with US decisions, such as Davis v Davis, Kass v Kass, and AZ v BZ, (the Disposition Cases), which deal with similar disputes about frozen embryos, and which have produced a range of outcomes. 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. More specifically, some cases consider whether an interest a progenitor can have in a frozen embryo can be proprietary in nature. Such analysis of the status of the embryo is almost completely absent from the Evans case. In addition, 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.

Analysis of the Evans case and the Disposition Cases provide insight into judicial attitudes regarding peoples right to procreate versus the right not to procreate, an evaluation of the equality of men and women in sex and reproduction, and the interest of children who are born as a result of ART. Given the range of possible avenues of resolution of similar factual scenarios in the US and UK cases, this paper will also reflect upon what could potentially be the position taken by Australian courts.

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, following the lead of countries including Denmark, France, Germany, Sweden and the US. Neither New Zealand nor Australia currently offer such a program, although there have been regular debates over the past few years in both

66

countries concerning this, and these debates will likely increase following the introduction of the UK trial.

This paper argues that chemical castration ought not to form part of the criminal law, 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. In support of this argument, the paper discusses two issues that warrant careful consideration. First, it needs to be considered whether chemical castration can legitimately be classified as voluntary when it is offered as an alternative to prison, or as a condition of parole. If it is in fact non-voluntary then the implications of this need to be carefully considered. Second, it is not clear whether chemical castration is therapeutic in nature, or is actually an additional punishment to be imposed on criminals. This issue involves a discussion of its effectiveness in reducing sexual offending; the related topic of compulsory contraceptive use for females in the US; and the extension to use for nonsexual offences. If chemical castration is a punishment this raises issues of human rights, eugenics and double jeopardy.

Chemical castration appears to attract a high level of support from the public, but this does not necessarily suggest that its adoption, even if classified as voluntary, is appropriate. The New Zealand and Australian governments need to carefully consider the legal implications of introducing such a program, and not be influenced by popular demand, or reports from other countries.

THREATENING

AND

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, Cho Seung-hui at Virginia Tech is an example of unimaginable tragedy happening within a university setting. There is little doubt that this particular case was unusual, and it is hoped that this 67

event does not repeat itself. Whilst this case clearly represents a situation that sits at the extreme end of the violence spectrum, it nevertheless highlights for staff potential student vulnerability related to problems like stress, alienation, violence and mental illness. Less extreme but similar situations have occurred in Australia as well as other countries.

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. However, despite the gun debate factor, it has been noted that other important psychological features were at play at the time including the increasing social isolation, anger and aggressive behaviour of the perpetrator. Indeed, it is reported that prior to the shooting, an English Professor alerted the university administration of Chos mental deterioration. Unfortunately, nothing remarkable was done by the university at the time of the report.

Whatever the combinations of reasons for the resulting catastrophe, problems associated with student dissatisfaction and frustration is all too apparent in some areas of university teaching. Examples of this can be evidenced by what seems like an increase in anonymous and often threatening e-mails to subject lecturers; as well as inappropriate personal lecturer comments in subject evaluation forms. Issues like decreased government funding, changing management structures of universities, increased student numbers, international students, lack of student support and unrealistic tertiary expectations all contribute to the rise of individual stress levels of student and academic cohorts. 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?

68

This paper aims to identify and discuss some of the main issues and to engage in discussion about personal stories in this area.

LAW FOR NON LAW STUDENTS

IMPROVING COMMERCE STUDENTS OUTCOMES IN THEIR FIRST LAW SUBJECT Mark Bender, 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.

The project involved the analysis of written exam responses of students enrolled in the first year core Business Law subject in Semester 2, 2006 and also included interviews with students who had not passed the subject and those who had received Distinction grades or above.

The aims of the project were to:

Investigate which topics (areas of law) students choose, or do not choose, to respond to on the exam and which problem questions are poorly answered. Conduct a discourse analysis of selected problem questions to explore the written discourse strategies used, and not used, by successful and unsuccessful students. Gain insights into how students gained an understanding of the content and the conventions of Business Law writing, the strategies they used for exam preparation and what additional support or direction they felt could have improved their performance.

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.

69

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.

70

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.

71

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 students 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:

1.

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

2.

identify the method that seems to optimise its application.

TEACHING LAW TO CHINESE STUDENTS: SOME REFLECTIONS David Parker Victoria University

There is a large, and possibly increasing, cohort of students arriving from China to study in Australian universities. While some of these students may actually study in a law degree, those who do commercial studies, either at an undergraduate or graduate level, quite often have to complete some form of law type studies as part of their course. 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. This paper outlines some of the problems that Chinese students appear to have when encountering law studies for the first time. Similarly this paper attempts to consider the debate as to whether Chinese students might be characterised simplistically as surface rote learners, rather than reflective and independent scholars. The paper outlines some of the traditions of Confucian education and ponders on whether this impacts on particular students mode of learning. The paper proposes some suggestions for discussion, particularly in utilising some aspects of Confucian learning, the main point being that there should be greater sensitivity and awareness for our Chinese students, and hopefully a greater discussion on how their needs might be addressed.

LEGAL EDUCATION

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

delivery of their law programs. 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. In particular the use of teaching methodologies and approaches from other disciplines have been utilised in an attempt to engage law students, especially later year students in the classroom.

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. 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. Revenue Law is generally accepted by students and academic staff alike that the unit of study is a difficult one. 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. For instance for the core areas of income and deductions, where the legislative framework is very general, that the study of case law is required. For other topics such as the taxation of trusts, where there is a need for an understanding of the nature of a trust, a more structured lecture approach may be more appropriate. 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. In that regard the use of techniques such as storytelling by students, explaining the factual scenarios and policy processes behind the litigation between the parties, provides a basis for classroom discussion. 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. Students have been asked for feedback to this storytelling process through questionnaires and the data from this exercise will be discussed.

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.

74

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. Podcasts are one such form of technology, but a number of issues hinder their large scale utilisation. 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 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, 2006. They were produced utilising ready-to-hand software for minimal cost, in a method readily transferable to other subject areas and disciplines. This paper will examine the Vignettes and their method of production, and present the overwhelming positive results of a survey of students using them.

GOING TO THE MOVIES: LEGAL EDUCATION, PROBLEM BASED LEARNING AND PUBLIC POLICY. Kathy Douglas & Michele Ruyters RMIT University

Problem Based Learning (PBL) is a learning and teaching strategy particularly well suited to legal education. It is a learner centred approach that assists law and legal studies students in undergraduate, post graduate and practical training programs to identify problems and collaboratively and creatively provide solutions. In this paper we explore the use of popular culture movies to begin the PBL experience for students. We reflect upon teaching at RMIT University in Evidence and Civil Procedure where we have utilised films to provide scenarios for problem solving. Two films, The Interview (1998) 75

and A Civil Action (1998), 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. In particular, 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. For example, the film The Interview raises concerns

regarding criminal justice policy and the rights of the accused. Students can engage with public policy dilemmas such as the competing rights of the accused and the protection of society. This policy tension is particularly relevant given recent initiatives in Australia and globally to deal with the perceived threats of terrorism. In the civil jurisdiction the film A Civil Action raises concerns regarding the preservation of the environment and legal regulation. Students engage with the need to deal with community concerns

through such means as public policy mediation.

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, students would develop better reasoning and arguing skills and be better practitioners, students able to think and act independently would be more attractive as employees, 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. However, little guidance is currently available regarding how critical thinking relates specifically to legal education and legal practice, what level of criticality is appropriate for law students, and whether and how critical legal thinking might be assessed. 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, vocationally relevant, grounded in theory and oriented towards legal and social reform; and (2) identify the best methods for assessing such a form of critical legal thinking. 76

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; identification of the possible definitions of critical legal thinking; identification of the criteria for judging definitions of critical legal thinking; and construction of the best definition 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.

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; identification of the criteria for judging methods of assessing critical legal thinking; and identification of the best methods for assessing critical legal thinking. 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.

THE

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. 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, engaged and interactive learning experiences for students. Effective strategies are expected to enhance student

engagement and learning through online activities within the curriculum, and improve effectiveness and efficiencies by reducing lecture time. 77

However, there can be resistance to the introduction of new integrated technology strategies into a course. Many seasoned lecturers may doubt their ability to learn and manage new electronic technologies, may question whether the quality of teaching and learning experiences will be enhanced by these new approaches, and query whether workload agreements can accommodate these changes. For institutions which have adopted a strategy on the adoption of e-learning technologies, 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.

LIFELONG LEARNING: ENGAGING STUDENTS AND TEACHERS IN LEGAL EDUCATION Claire Macken & Pamela Mulready Deakin University

This paper introduces a project called Law E-ssentials, a project to provide online, CDROM and hard-copy information, resources and links to communities for both law students and law teachers.

For law students, Law E-ssentials recognises that law studies in higher education is part of a lifelong learning cycle, beginning with pre-entry into law (either by school-entry or individual inquiry), to first year law programs, mid-year law, penultimate and final year law students to law alumni. Law E-ssentials provides skills sets for each of these 78

students recognising the need for flexible and lifelong learning. To do this, Law Essentials has built key resources to support the development of skills, such as time management and organisation, reading and listening skills, note-taking, legal writing and research skills, legal problem solving through fact analysis, instruction in practical legal skills and much more.

For law teachers, Law E-ssentials is developing and sharing practical hints, and tips for law teachers, as well as providing the opportunity for law teachers to engage with literature on best teaching practice in law.

To fully engage both law learners and law teachers, Law E-ssentials is also developing social software. Online learning communities, 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, law teachers to engage with each other, and for both to engage with the legal profession. 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.

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. While there are other mechanisms for increasing the quality of marking, such as anonymity of scripts and double or second marking, the QAA in the UK places great emphasis on the external examiner system. In New Zealand, 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. This paper considers the rationales of the systems, where they fit into overall assessment, the roles of the examiners, and the benefits and drawbacks of the two approaches. It 79

raises some questions about their practical effectiveness as quality assurance mechanisms, and considers whether there are equally robust alternatives. The paper aims to provoke discussion with Australian colleagues about whether Australian law schools might benefit from such a system.

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.

80

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.

PILOTING THE USE OF THE YOUTUBE GENRE AS TEACHING AIDS IN LAW Michelle Sanson University of Technology, Sydney

Students appreciate when academics use video/DVD material as a teaching aid, and it is also sound from a teaching point of view in extending the adult concentration span through regular varying of the teaching activity. In their spare time, recent school leavers seek out music downloads, webcam shots, amateur movies, and podcast recordings for their personal amusement, and it is possible that adopting the genre of sites such as YouTube may be an effective tool for teaching law. The YouTube genre refers to the famous website www.youtube.com, where amateur footage is posted online on a range of subjects. It is essentially about an unstructured, unregulated, unpolished broadcasting of anything a person wants, from the exhibitionist to the educational. At present the range of videos available to assist in teaching law (content and skills) is limited. Further, purchase videos are inflexible and date quite quickly. Adopting a YouTube genre may be a low cost, flexible, effective solution to teaching videos. Using a handycam, Microsoft Moviemaker, and a laptop with a DVD burner, videos that may be designed and created for specific teaching tasks, and may be edited and updated quite easily for future use. The videos may be used in face-to-face teaching, or posted on WebCT or even YouTube itself. The presenter is presently piloting the use of YouTube-style audio-visual recordings teaching and learning both content and skills in law, and will present her experience to date as well as an example video.

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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. They have embarked on such placements in lieu of writing standard legal research papers. In the absence of a clinical program, students have embraced the placements as rare opporuntities to gain practical work experience. The placements have also discolosed a number of unforseen benefits. By providing students with rare opportunities to work on legal policy papers, the placements have unearthed students with exceptional policy skills, which had lay dormant in a legal problem solving focused law curriculum. The placements have also provided students with rare opprotunities for team work. Participating oranizations have been grateful for the additional researchers and exciting joint projects are being discussed. This paper outlines and evaluates the experience and potential of placements in the law school curriculum.

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. The timing of the evaluation is influenced by increased competition in the distance sector; by a recent decrease in the number of applications for entry; by anecdotal student feedback; by concerns as to whether the initial access and equity basis of the distance mode has been maintained; and by rapid changes in technology and developments in online teaching and learning. In stage one data was gathered by means of a questionnaire administered to current distance students across all levels of study, on the students, their background, aims and motivation for studying by 82

distance, as well as information on resources, skills, administration, assessment, and other aspects of the distance experience. A review of the literature on distance education has been partially completed, and comparable programs elsewhere in Australia identified. Focus groups of staff and students will add to the data. The goal of the study is to develop recommendations for improving distance delivery at Macquarie Law, and guidelines for best practice in the effective design and delivery of distance education, conforming to the same high pedagogical standards which would be expected for campus based delivery.

THE USE OF TECHNOLOGY TO CREATE AN INTERACTIVE LEARNING ENVIRONMENT FOR INTERNAL AND DISTANCE STUDENTS Debbie Wilson & Feona Sayles Massey University

Blackboards, OHPs and even whiteboards have been consigned to the museum of teaching tools of the past. Todays students are attracted to new technologies and demand that lecturers utilise these to assist them in their learning. 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.

Over the past year, the Business Law Group at Massey University has experimented with the use of technology. The purpose in using the technology has been to increase interaction with distance students and in larger class settings. This experimentation has provided highly positive results.

Course WebCT sites contain discussion forums for students to debate issues, optional quizzes which provide immediate feedback for them to measure their own level of progress, and the ability to submit assignments and receive feedback online. Distance students can access online audio lecture and PowerPoint presentations, and take part in real-time online tutorials regardless of their location. Those not able to attend can view a replay of the tutorial at their convenience. Internal students use personal response systems to answer multi-choice questions in lectures and tutorials, resulting in close to 83

100% class participation and instant feedback for lecturers on the classes level of understanding.

This paper discusses the use of these technologies in several law papers offered by Massey University, and provides observations as to the benefits to students, problems faced by teachers using the technologies as well as the resources required to implement these forms of teaching.

DEVELOPING COURSE OUTCOMES SCHOOL Normann Witzleb & Natalie Skead

AND AN INTEGRATED

CURRICULUM

AT

UWA LAW

The University of Western Australia

In 2006, the UWA Law School embarked on a Curriculum Review of its LLB degree. Central elements of the review were the identification of graduate outcomes, the formulation of a Course Outcome Statement and the mapping and integration of the outcomes appropriately and progressively across the degree. This paper shares the

process adopted in undertaking this aspect of the review and describes the results reached. A bottom-up approach was adopted starting with the development, 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. 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. The results of this exercise informed the formulation of the Course Outcome Statement and will further assist in other aspects of the Curriculum Review, for example, the introduction of new core units and the alignment of assessments with outcomes at unit and year level.

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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, watching, street paving and cleansing in the United Kingdom .It will compare these aspects of private bill legislation with those introduced in Australia under the auspices of State and Territory legislation. 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.

VIOLENCE, LOCAL MAGISTRATES AND THE INFORMAL LAW 1700-1833 Shane Sullivan The University of Queensland

When eighteenth-century prosecutors brought indictments for assault, riot, or other non-felonious offences against the person, their goal was not punishment of the defendant, but instead the extraction of payment, or less frequently, apology from the defendant. N. Landau, Indictment for Fun and Profit: A Prosecutors Reward at Eighteenth-Century Quarter Sessions, 3, (1999) Law and History Review, 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), or to refer the matter to the Quarter Sessions or the Assizes, but as the focal point for an informal settlement of a criminal complaint. This process will now be explored in terms of the impetus for such an informal resolution, the tools used by Kentish justices in the pursuit of such a settlement, 85

the nature of the offence which formed the subject of the complaint, the factors which determined the exercise of this discretion, the nature of the restitution involved in such a settlement, and the typicality or otherwise of this process. Finally, I will offer some conclusions on the role and the nature of "making-up", and its broader significance to the question of the motives of eighteenth and early nineteenth-century prosecutors of petty crime, and the impact of this issue upon how work in the field is conducted.

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. It is currently a compulsory component of the LLB degree, but not a points weighted paper. It is designed to complement the learning style and structure of the Otago LLB, is based largely on self directed learning and spans the full degree course. Students complete programmes in legal writing skills and in legal research skills and then apply these skills in assignments set in individual subject areas.

This paper tracks the history of the programme and the thinking behind the current structure and describes its various components. The paper does not purport to be an erudite exposition, but rather a practical insight into how things are done at Otago.

86

THE RESEARCH PROPOSAL WRITING GENRE Terry Hutchinson

AND

RESEARCH GRANTS: PERSPECTIVES

ON A

LEGAL

Queensland University of Technology

The current tertiary climate requires academics to constantly churn our research grant applications. The success of these depends on many factors the viability of the intrinsic research concept, the match between the granting bodys criteria for funding and the research objectives, the standard of other applications to name a few. However, at the basis of each research grant application is the research proposal. The research proposal genre is a necessary part of training for academic writing. It is used widely in research higher degrees and masters units. This paper examines the components of a standard Research Proposal including the Literature Review. It also includes some reflections on considerations to be taken into account in writing a Criteria Referenced Assessment sheet. The CRA examined establishes some standards for the genre.

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. Law students spend much of the semester of a subject trying to consume the content of the law. This often leads to a superficial or surface understanding of the legal principles. They mistakenly think if they have spent long hours writing lecture notes that they should know the principles. 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. 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. This shows that students are concentrating on a transmission and

regurgitation approach to learning as opposed to a deeper understanding of the legal principles. This is especially a problem when the facts require them to identify

87

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. The paper will examine the writing process as a tool to help students overcome their errors in thinking. Students eventually should be able to develop the ability to diagnose thinking problems and not be so reliant upon the lecturers understanding or interpretation of the legal principles. Legal writing exercises are particularly useful because they require students to reveal their thought processes on paper. 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.

PRACTICAL LEGAL TRAINING

INFLUENCING

PUBLIC POLICY AND THE LAW: LAWYERS AT THE INTERSECTION OF

POLICY, LAW, 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. 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.

The paper positions lawyers at the intersection of policy, politics (but apolitical), administration and law and explains what this intersection comprises in each element. It provides some insights into and examples of these elements.

The paper considers some of the issues presented to lawyers who are legal advisers to policy teams (often the problem solver, but not the policy adviser).

88

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 ANUs 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.

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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 lawyers 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.

PROPERTY LAW

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.

91

Topics for specific consideration will include: wills made by minors; dispensation of formal requirements by the Supreme Court; powers of the Supreme Court to authorize the making, alteration and revocation of wills for persons lacking testamentary capacity; revocation of wills including the effect of marriage and divorce; extrinsic evidence; the 30-day beneficiary rule; and dispositions of property to an unincorporated association.

PRESCRIPTIVE

AND IMPLIED EASEMENTS:

DO

THEY HAVE A FUTURE IN THE

TORRENS

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.

Prescriptive easements are easements that arose at common law due to a long established de facto enjoyment of a right over land. Easements by implication, broadly speaking, cover those easements that are based on common intention, necessity or are inferred or implied in favour of purchasers of land.

Special attention will be paid to the operation of the Torrens system in NSW, as most non-Crown residential and commercial land in NSW is regulated by the Torrens system. It will be argued that even before the full impact and implementation 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. 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. Relevant amendments to the provisions of the Real Property Act 1900 (NSW) will be tracked. It will be argued that significant statutory amendments to

92

that Act near the end of the 20th century have severely circumscribed when easements may constitute exceptions to indefeasibility of title. 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, the impact of two groundbreaking NSW Court of Appeal decisions, Williams v State Transit Authority of New South Wales [2004] 60 NSWLR 286; and McGrath v Campbell [2006] NSWCA 180 (7 July 2006) will be discussed.

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, that is, a title which is immune from adverse claims other than those which are specifically excepted. One exception to

indefeasibility is the fraud exception which renders a registered proprietors title defeasible where the registered proprietor was guilty of fraud in becoming registered. 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.

This restrictive interpretation of the fraud exception serves to reinforce the paramountcy of the indefeasibility of a registered proprietors title.

However, a registered proprietors 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.

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

indefeasibility. The question that arises is; 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. In answering the question posed, the paper will also consider the recent decision of Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22 in which a unanimous High Court firmly bolted the stable door on the recognition of one potential in personam claim.

UNFAIRNESS IN RETAIL LEASING AN EXAMINATION OF TERMS OR CONDUCT? Eileen Webb The University of Western Australia

In May 1997, the House of Representatives Standing Committee on Industry, Science and Technology released its report, Finding a Balance Towards Fair Trading In Australia (the Reid Report). The Committee had examined an array of instances of unfair conduct in relation to small business transactions, including retail leasing. The Reid Report made numerous recommendations aimed at addressing instances of unfair business conduct identified by the Committee.

Although the Reid Committee recommended the insertion of a provision prohibiting unfair conduct in small business transactions, an unconscionability standard was subsequently adopted. To date, the resulting provision, s 51AC, and its state and territory analogues, have not, arguably, had the impact on the conduct of retail leasing transactions as was generally anticipated. 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.

Two alternatives will be examined:

the extension of unfair contract terms legislation to encompass retail leases; and 94

the inclusion of a provision prohibiting unfair conduct in the TPA.

In relation to the first alternative, legislation addressing unfair contract terms in consumer contracts has gained traction in recent times, however, 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. On the other hand, such a development would provide an avenue for relief in instances of substantive unfairness; something which, with the focus on procedural issues and an onerous unconscionability standard, is presently unachievable.

The second alternative adopts Recommendation 6.1 of the Reid Report. While the prospect of a provision prohibiting unfair conduct in retail leasing is not new, it remains controversial and is presently under consideration in yet another inquiry; the Productivity Commissions investigation into the market for retail leases in Australia. Such a development would seem to address both procedural and substantive unfairness and, arguably, overlap with some of the other provisions of the TPA, particularly s52 and Part IVA.

PRESCRIPTIVE

AND IMPLIED EASEMENTS:

DO

THEY HAVE A FUTURE IN THE

TORRENS

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 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. However, the implementation of a title by registration system, 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.

95

However, the law remains unclear and inconsistent. 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.

PRESCRIPTIVE

AND IMPLIED EASEMENTS:

DO

THEY HAVE A FUTURE IN THE

TORRENS

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. 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. However, the implementation of a title by registration system, 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. However, the law remains unclear and inconsistent. 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.

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, that is, a title which is immune from adverse claims other than those which are specifically excepted. One exception to 96

indefeasibility is the fraud exception which renders a registered proprietors title defeasible where the registered proprietor was guilty of fraud in becoming registered. 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.

This restrictive interpretation of the fraud exception serves to reinforce the paramountcy of the indefeasibility of a registered proprietors title.

However, a registered proprietors 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.

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. The question that arises is; 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. In answering the question posed, the paper will also consider the recent decision of Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22 in which a unanimous High Court firmly bolted the stable door on the recognition of one potential in personam claim.

97

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 Commissioners right to settle tax disputes. It compares the ATOs Code of Settlement Practice with the approach taken by the New Zealand courts. Finally it suggests how the power to settle tax disputes may best advance the interest of both the Revenue Authorities and the taxpayers involved.

It is a fundamental constitutional principle that Parliament imposes tax while the Commissioner merely has responsibility for collecting it. 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.

Despite that principle, since 1991 the Australian Federal Commissioner of Taxation has recognised the ability to negotiate settlements of tax disputes based on the good management rule. This policy allows the ATO to take account of public policy, the allocation of scarce resources and litigation risk to settle tax disputes on a compromise basis.

By contrast the New Zealand Commissioner of Inland Revenue was slow to take advantage of the power to settle tax disputes. Initially ignoring legislative amendments specifically granting him care and management over the collection of taxes, the Commissioner argued he was not permitted to settle tax disputes on an unprincipled basis.

In a series of judgments culminating in Accent Management Ltd v CIR, New Zealand courts have confirmed the Commissioners power to settle tax disputes on a compromise 98

basis. 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.

However, unlike the ATO, the IRD has been slow to explain the grounds upon which it will settle disputes or establish any procedures. A limited discussion document in 2005 on its power to settle disputes has never been confirmed. This absence of policy has caused uncertainty and frustration for taxpayers, resulting in unnecessary litigation.

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, after the fall of the Australia Card proposal. It arose out of a policy of reducing tax avoidance, but the uses of the TFN system were very quickly expanded so as to increase the efficiency of Government departments. In 2007, as the Australian Government considers whether Australia should have an Access Card, the TFN system and the implications that it has on privacy are worth considering. What lessons are there to learn from this system?

This paper will touch on: The policy intent of the 1980s Australia Card proposal, why initially it received much support but was then withdrawn; Why the TFN system was introduced, and the assurances that were given regarding its uses; The function creep that has resulted; The underlying policy intent of privacy protections and whether these protections are effective in protecting TFN holders; and Where Australia is going in terms of identity and registration systems, and whether there is a need for an Access Card.

99

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. While the concept of a trust is well understood in both

jurisdictions, 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.

The Paper will commence by examining the American and Australian experiences with trusts, including a brief examination of how trusts are used and how many trusts file tax returns. This will provide an important context and backdrop to the ensuing discussion and analysis.

In terms of any examination of the evolution of trusts, the British roots to the concept of a trust are important and will be analysed next in the Paper. Following this, a discussion of the United States trust attributes will be undertaken.

The next part of the Paper will examine in more detail how and why trusts are used in Australia, focusing specifically on some of the taxation implications of the use of trusts in Australia. A comparative analysis will be undertaken in the United States context,

showing how similar tax outcomes can be arrived at without using the technique of a trust.

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.

100

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, which often administer large blocks of farmland or other assets communally owned by Maori, and other Maori entities established under the Waitangi Treaty settlement process administering assets.

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, Maori Organisations, 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 lower tax rate of 19.5% 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. It also acknowledges that the majority of Maori owners receiving distributions from Maori authorities are on low income.

The paper also discusses the administrative practice of Inland Revenue under the special tax regime. Finally, 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.

101

TRAINING

FOR

TAXATION: RANDOM

THOUGHTS ON

TEACHING TAX LAW

AFTER

30

YEARS AT UTS: A PRECIS William John Taggart University of Technology, Sydney

Since July 2000, there has been a marked growth in the number of students in our taxation law courses. Largely this has been in relation to our cross discipline students [or business students] rather than from law students. It happens to have been at a time of tremendous change to the tax system and increasing legislative innovation. The need to adopt innovative techniques in teaching taxation law has never been higher, with the ATO itself moving towards e-returns and the internet as a client interface.

However, there have been severe structural problems in bringing the new technology into the class room. 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. This is largely true. We are still seen very much as a chalk and talk subject. The Law Facultys have still to recognise the importance of taxation law and it is not included in the Priestley 11 [or is it 12]. Taxation Law is seen as a service subject.

However, for the first time, the means are at hand for all this to change.

With changes to the Corporations Law and the Financial Services Reforms, we can no longer afford to ignore the need to educate our students to work in a multi disciplinary environment. 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.

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.

102

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 Australias for there to be a clear understanding of what goodwill is and of when an asset is goodwill or something else. 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, including goodwill, and in which there are several contexts in which taxpayers deal with intangible property in order to obtain optimal benefit from the tax laws, the lack of a clear meaning for goodwill is a serious limitation of the tax system. 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. 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, accounting and economics, as they are brought to bear on taxation. 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 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.

Recently, this issue came to a head in FC of T v Indooroopilly Childcare Services (Qld) Pty Ltd 2007 ATC 4236. In that case, the ATO apparently argued in its written

submission to the Full Federal Court that the fact that there were single judge decisions

103

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, 4255), Counsel for the Commissioner submitted that this had not been intended as a general proposition, 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, 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. 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, in the form of the Australian Taxation Office ignoring the views of the [Federal Court].

Later, 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.

The Full Court was scathing in its criticism of this perceived approach by the ATO, indicating in effect that the only choices for the ATO were to follow single judge Federal Court decisions, or else either take other proceedings such as declaratory orders, 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).

104

Not surprisingly, the Full Courts comments in Indooroopilly have generated considerable vigorous debate, both for and against the ATO approach.

Several have argued that the ATOs approach subverts the rights of taxpayers under the rule of law (Robertson; Bender).

On the other hand, Davies argues that the ATOs approach was proper, and merely a means of having the matter properly and fully debated at an appropriate level in the Judiciary - particularly as, in his view, there is no general declaratory power which the ATO could use to clarify the law.

Clearly, 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. The Commissioners submissions, and the Courts comments, are therefore of central importance to Australian tax jurisprudence (and beyond), and are accordingly analysed in detail in the Paper.

SOCIAL JUSTICE

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, powerful, rhetorical, mythological, and emotional hold on our imagination. It defines the control that we have over our own bodies, structures our relationships with others, and goes to the core of what is necessary to achieve proper self-development. In short, property structures everything that we do. Yet modern property theory seemingly

overlooks the place, or the space in which property exists, operates, and has meaning in peoples lives. At every moment of life, we interact with others and the world around usspacethrough some form of propertyprivate, common, or public. And through 105

property we structure, create, and produce both physical and social spaces; over time we continuously alter and re-structure, re-create, and re-produce those physical and social spaces. And, because we are part of it, physical and social space also interacts with us and with property.

This paper argues that property theory does say something about space, but in an incomplete and inexplicit way. 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. This has implications for using property as a vehicle for achieving justice. This re-structuring requires us to say something about the constituent elements of human life in societysocial life. 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, society, and space (both physical and socially constructed). Part II uses Sojas ontological trialectic to re-assemble what we already know about property. 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, giving space an explicit role in defining what property is, when it exists, how it is central to and affected by human life, and how it is necessary to achieving spatial justice.

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, yet are more commonly found in the lower ranks of the profession? This question, which has occupied feminists since Carrie Menkel-Meadows essay Portia in a Different Voice, has produced many different answers. It is difficult to support the argument that it is just a matter of time before women will assume an equal status in practice. However, there is no agreement as 106

to the deciding factors that account for the gendered disparity in status, 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. In order to evaluate the effectiveness and the desirability of such a policy, the paper will refer to recent data on the status of female barristers, the speakers interviews with female barristers and the substantial body of literature relating to the implementation of affirmative action policies in Australia and internationally. 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. In particular, the paper will discuss the merit principle which is commonly relied upon as the fair basis for promotion within the profession. 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, but has tended to be unproblematically defined in masculinist terms which reflect and sustain the dominant legal culture.

THE LICENSING MORALITY?

OF

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 Australias prostitution laws in a bid to decriminalise the worlds oldest profession. The Governments 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. 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, if at all, is one which has been continually raised across

107

jurisdictions and throughout history. 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. The effectiveness of any licensing model is, however, contingent upon its detail. With this in mind and in light of the ongoing reform efforts in WA, 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. 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, built on a moral stance which finds its equivalence in the criminalisation model.

LABOUR

IS NOT A

COMMODITY: WORK CHOICES, RHETORIC, REALITY

AND THE

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, in order to illustrate that they could not answer the underlying issue. Part II and Part III places the judgments within a broader socio-political context. The contested terrain for the regulation of labour in Australia is firstly examined. Then concurrent changes within corporate law are examined. These two areas have become increasingly more

interconnected within the uniquely Australian context of corporate managers increasing prerogative to regulate their workers. Part IV places the legislation under challenge within its socio-political context, giving a critical overview of Workchoices changes. Finally, the public policy analysis of the majority is contrasted with the two dissenting judgments. This illustrates that the High Court whatever its final decision - 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.

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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, such as those in Australia and the UK, have been increasingly seeking to enhance integration between their tax and benefit systems. 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. The UK, Australia, Canada and the USA have all now introduced variants of so-called integrated tax and benefits systems. All have experienced difficulties and problems in implementation (Commonwealth Ombudsman, 2003). In this paper we describe the moves towards integration in both Australia and the UK. This suggests that, whilst the UK and Australia have ostensibly similar systems (and indeed, were largely copied from each other), they are driven by quite distinct policy goals.

In this paper we examine the operation of the family tax transfer systems in each country, as enacted by relevant legislation. We then set out a range of generic problems with integration, with specific reference to family support mechanisms, and describe the UK and Australian attempts to address these. The differing policy imperatives of the two countries support the argument that the problems encountered are fundamental to tax and benefit systems, rather than specific to particular policy conditions.

DISCRIMINATION, 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, sexual harassment and workplace bullying are noticeably absent from the new Queensland Rules of Professional Conduct. Results from the Queensland Law Societys Equalising Opportunities in the Law Committee 2003 Membership Survey would suggest that this is still an important issue in the 109

profession. The absence of these specific rules represents a critical gap which needs to be addressed urgently. In addition to collating details of the demographic and working habits of over 2500 QLS members, the Report focussed on the nature and prevalence of discrimination and harassment in the Queensland legal workplace. Areas of concern included discrimination or harassment on the basis of gender, age, race, family responsibilities, sexual preferences, religion and disability. The results of this survey firmly demonstrate that promoting diversity in the Queensland legal workplace should be made a priority. 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, including Indigenous Australians, working parents and those with disabilities. Other states are already taking action on this issue and it is important that Queensland keep pace.

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. One of the impacts of the recent change is the question of how female sexual offenders should be sentenced.

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, the age of the victim, and the impact on the victim. The overall concern for sentencing is whether the punishment corresponds to the harm inflicted. This is difficult to accurately assess in the situation of female offending as recognition of this type of offending is still in its infancy, so the full impact of the harm created by these offenders is relatively unknown.

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. In recent cases involving

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females as sexual offenders there appears to be marked differences as to the way they have been sentenced. There also appears to be a difference between the way male and female offenders are sentenced. Although the courts have appeared to endorse full equality of sentencing between genders there are still subtle gender distinctions present.

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. The characteristics of male and female sexual offending will be considered and compared. Aspects such as the harm created by these offenders will also be discussed.

LAW, PUBLIC POLICY

AND

PURITANISM:

FROM

THE

CRIMINALISATION

OF

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. During this period homosexuality was severely punished as it was considered a vice of the worst kind. Influenced by English puritanism, the laws, social attitudes and mores that were transported to the colonies made life for homosexual people very difficult. The story that emerges in these early years is a negative one. Words that were used by legislators, judges, the police and the public at large, throughout the early twentieth century, such as loitering, gross indecency and sodomy, have helped shape the perceptions and misconceptions of generations of people in Australia, both gay and straight.

In the 1950s and 1960s the medical profession believed that psycho-surgery, ECT and aversion therapy could cure homosexuality, which was defined, under the DSM, as a form of abnormal psychology. However, the Gay Liberation Movement in Australia in the early 1970s challenged the legal and medical professions to adopt a more tolerant

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attitude towards homosexuals. By the 1980s, in nearly every Australian jurisdiction, 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. Psychologists also came to understand homophobia, like racism, to be a product of internalised irrational fear. What informed the lawmakers, in this new liberal age, was a world-view shaped by modern psychology, human rights values, and a more liberal clergy. Ironically, what were once the sources of homosexual oppression law, religion and science had become the basis for the gradual empowerment of the gay and lesbian community.

This paper will focus on the changing legal, social and political status of gays in Australia. Part One will explore first hand accounts of those involved in law reform, including gay and lesbians activists, community organizations, academics and mainstream politicians. 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, Law and Sexuality etc) and what pedagogical challenges are emerging at the academic level.

SOUTH PACIFIC

LEGAL

IMPLICATIONS ARISING FROM

SUPREME COURT REFERENCE NO 2

OF

2004:

SPECIAL REFERENCE PURSUANT TO CONSTITUTION SECTION 19, 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, Special Reference by the Morobe Provincial Executive, (the ECP Case) a special reference to the Supreme Court of Papua New 112

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, 2004(the Act).

The Act was the result of a Joint Agreement between Australia and Papua New Guinea, 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, governance and, law and order. In July 2004, the Government of Papua New Guinea passed the ECP Act attaching the Joint Agreement as a schedule. At the time of the passing of the Act, implementation of the Agreement was well underway, with the engagement of Australian public servants and police personal in various government departments. 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., 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.

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, The paper will attempt to achieve this aim by arguing firstly that in terms of 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.. Secondly the legal status of the personnel to be engaged needs to be clarified or defined. If the designated police personnel are not peacekeepers or police personnel per se, what are they? This is crucial as the legal status of the personal to be engaged determines the scope of the exercise of functions, powers and immunity if any, accorded to and exercised by such personnel. The paper will conclude by suggesting which laws need to be amended or introduced if need be, to enable of police personnel from other countries to effectively address and strengthen law and order in Papua New Guinea.

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ALTERNATIVE DISPUTE RESOLUTION: MEDIATION COMMUNITIES Paul Mae The University of the South Pacific

IN

RURAL SOLOMON ISLANDS

Dispute Resolution is not a new concept to Solomon Islands societies. Disputes and problem solving is an integral part of the communities. Over long period of years societies had developed ad hoc and informal mechanisms to deal with these disputes; only to be overshadowed by the introduction of the court system and formal laws by the colonial administrators. The practice continued when the country attained independence in 1978. Over long years of subdued political freedom, the Solomon Islanders developed a natural mindset that formal courts are the only recognized institution for resolving disputes. Even the local courts are seen as European styled courts, though its composition may be local in nature.

However, 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. Parties are not satisfied with the outcome of the court hearings, resulting in a growing need for alternate forms of dispute resolution. It is in this situation that this paper offers the traditional mechanisms as alternate dispute resolution mechanisms in Solomon Islands.

The paper will identify the alternate dispute resolution mechanisms that exist in the Solomon Islands communities. The paper will concentrate on traditional or informal mechanisms. 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. 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. The general assumption is that only matters brought before the court are legal and enforceable. The paper will then offer some recommendations or steps that can be taken to give legal recognition to these traditional ADR mechanisms. 114

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, yet it is infrequently discussed in tort law, unless it is in relation to consent. It is the purpose of this paper to consider the relationship between tortious negligence and reduced capacity, 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. In analysing these reasons, similar decisions relating to children will be considered, as they provide an interesting comparative base.

This analysis of negligence laws response to capacity reveals a distinct inconsistency. Courts accept the reduced capacity experienced by a child as a factor to be taken into account when determining liability, but they do not afford the same level of sensitivity when the reduced capacity is due to mental illness.

Scholarly attempts to explain negligence laws response to the mentally ill will be considered as will the difficulty in accommodating adequately the needs of both plaintiff and defendant. Suggestions of alternative reasons for the current law are offered, as too are proposals for reform.

115

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, in which a rape victim was traumatised by the publication of her identity by a national broadcaster. In upholding the claim, 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, although this time in a different context. Significantly, Hampel J also based her decision on the alternative grounds of breach of statutory duty, breach of confidence and breach of common law duty of care. Although attracting less media attention, each of these also represented important developments of the law. This paper examines the decision, particularly in the context of current developments in protection of privacy interests and media negligence. It is shown that aspects of her Honours judgment are problematic. Implications for the media are also considered.

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, forgiveness and reconciliation, 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. The apology does not feature in books on remedies, or in works on contracts and torts. The reason for this is simple: the apology is not a common law remedy. In recent years, however, the role of apologies in tort law has been the focus of attention in

116

the form of civil liability rules aimed at removing legal disincentives to potential defendants to apologise for the harm they may have caused. This area of law reform has excited much debate about the morality and efficacy of protecting apologies. A much less noticeable debate centres on the exercise of the discretionary powers of a court or tribunal to order a defendant to apologise. In equal opportunity law and areas of copyright law in Australia, for example, orders to apologise are made not infrequently. This paper will analyse three cases from Australia, New Zealand and Canada where the apology and similar forms of relief have been the subject of judicial consideration in common law actions. In one case the action arose out of a contractual relationship, the other two actions involved defamation and malicious falsehood. It will be argued that there is potential, albeit limited in scope, for judicial remedies to place more emphasis on the therapeutic benefits and rights enforcement potential of this form of non-monetary relief.

VICARIOUS LIABILITY AND THE NON DELEGABLE DUTY- 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. However, this purpose now seems to have been largely ignored and the scope of the action broadened considerably. The problems that arise from this are clearly demonstrated in the decision of State of NSW and Lepore; Samin and State of Queensland & ors; Rich and State of Queensland & ors [2003] HCA 4 and The Commonwealth v Introvigne (1982) 150 CLR 258. 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. To ascertain the cause of this confusion the reasons surrounding the

introduction of the non delegable duty, established in Wilsons & Clyde Coal Co v English [1938] AC 57, need to be considered. Also, the nature of the duty itself needs to be examined. It can be suggested that any confusion arises, in part, from a

misunderstanding of the nature of the duty. The non delegable duty has been described 117

as a special duty of care by Mason J in Kondis v State Transport Authority 154 CLR 672 at p 687. 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- delegable' or special duty of care.

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. 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. It should become apparent from such an analysis that the actions of vicarious liability and the non delegable duty are, with some minor exceptions, the same cause of action. Thus, any effort to present them as alternative causes of action can only result in confusion.

NEW HORIZONS IN CONTRACT LAW-APPLYING CONTRACT ANALYSIS TO THE PROVISION

OF SOCIAL GOODS- 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. Specifically, 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. Community housing is part of the broader field of social housing and constitutes a social good funded by the Commonwealth, administered by New South Wales and delivered by not-for-profit autonomous housing organizations. Funding agreements have played a crucial role in structuring the relationships between the various participants. 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

authority and individual community housing providers. 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. 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.

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

DRINK

IF YOU DARE:

THE

CIVIL AND CRIMINAL CONSEQUENCES FOR THE VICTIM OF

INTENTIONAL DRINK SPIKING.

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. 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. In some Australian jurisdictions legislation has already been passed making drink-spiking a criminal offence, and recently the Federal Minister for Justice announced plans to consider uniform laws outlawing drink and food spiking in all jurisdictions. With the creation of new offences, interesting questions arise regarding the extent of legal protection afforded to potential victims. With a focus on the position in Queensland this paper considers both the civil and criminal consequences of drink-spiking for the victim. 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?

119

Of particular concern is the situation where the victims themselves behave erratically and commit tortious acts or offences after having their drink spiked. 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. While the creation of new drink spiking offences may assist in deterring offenders, this paper considers whether the law currently provides adequate protection for the increasing number of victims of drink spiking behaviour.

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. 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. These cases are also interesting because they do not directly address the question of the standard of care for non-delegable duty. 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.

COMMON SENSE, LEGAL PRINCIPLE, AND PUBLIC POLICY IN THAT ORDER: DOES IT WORK FOR WRONGFUL LIFE AND BIRTH? Penelope Watson Macquarie University

According to Justice Michael Kirby, Judges face choices. Judges make law.to deny the creative function and duty of the judiciary is absurd. In recent decades the true debate in the law has shifted from the infantile insistence that judges should merely

120

apply, and never make, the law to a consideration of when and why a new legal rule should be expressed by a judge. When restraint is called for in the judicial decision. And when a new rule is justified. This paper explores the judicial law making process in novel situations, examining appellate judges conceptions of judging and decision making, as well as the scholarly jurisprudential literature. Drawing on this, it proposes a framework within which to critique recent appellate decisions in the birth torts (wrongful life and birth), in particular the use of and balance between principle and policy and common sense.

121