The Australian Defence Force, together with military forces from a number of western democracies, have for some years been seeking out and killing Islamic militants in Iraq, Syria and Afghanistan, detaining asylum seekers for periods at sea or running the judicial systems of failed states. It has also been ready to conduct internal security operations at home. The domestic legal authority cited for this is often the poorly understood concept of executive power, which is power that derives from executive and not parliamentary authority. In an age of legality where parliamentary statutes govern action by public officials in the finest detail, it is striking that these extreme exercises of the use of force often rely upon an elusive legal basis. This book seeks to find the limits to the exercise of this extraordinary power.
For reasons of effectiveness, efficiency and equity, Australian law reform should be planned carefully. Academics can and should take the lead in this process. This book collects over 50 discrete law reform recommendations, encapsulated in short, digestible essays written by leading Australian scholars. It emerges from a major conference held at The Australian National University in 2016, which featured intensive discussion among participants from government, practice and the academy. The book is intended to serve as a national focal point for Australian legal innovation. It is divided into six main parts: commercial and corporate law, criminal law and evidence, environmental law, private law, public law, and legal practice and legal education. In addition, Indigenous perspectives on law reform are embedded throughout each part. This collective work—the first of its kind—will be of value to policy makers, media, law reform agencies, academics, practitioners and the judiciary. It provides a bird’s eye view of the current state and the future of law reform in Australia.
Research theme: Law and Social Justice
Contemporary Australian Corporate Law provides an authoritative, contextual and critical analysis of Australian corporate and financial markets law, designed to engage today's LLB and JD students. Written by leading corporate law scholars, the text provides a number of features including: a well-structured presentation of topics for Australian corporate law courses, consistent application of theory with discussion of corporate law principles (both theoretical and historical), comprehensive discussion of case law with modern examples, and integration of corporate law and corporate governance, all with clarity, insight and technical excellence.
'Envisioning Student Learning in a Multi-Disciplinary Student Clinic Future Practitioners Learning About Working Collaboratively Across Disciplines to Better Help Community’ (Presentation Slides)
Author(s): Elizabeth Curran
In this paper, the author examines the imperative for interdisciplinary student clinics where law, nursing, social work and other disciplines work together in joint classes at undergraduate levels to learn collaborative and client skills to overcome barriers and professional stereotypes that impede the solving of clients problems holistically. Then they can work towards delivering a real life advice clinic to clients in most need and undertake systemic reforms to avert problems.
The paper defines interdisciplinary student clinics and multi-disciplinary practice given the nomenclature in literature is contradictory and confusing.
The presenter’s research and practical experience as a clinical legal education supervising solicitor within a health service has led to the idea for the development of an interdisciplinary student clinic as an important way of building better and more responsive future practitioners in health, law and allied health disciplines.
The paper outlines some initiatives undertaken by law students under her supervision that could if further developed be done in collaboration and co-cooperatively alongside other colleagues in different fields and in student learning to ensure respectful and reciprocal learning. It can also lead to an appreciation of different professional roles and differing ethical obligations. In this paper, the author identifies why there is a need for such an approach to break down barriers between professionals to improve social justice and health outcomes based on her recent empirical research.
She will explore research and new approaches to lawyering and health services provision that works across silos to enable more seamless navigable service options for real life clients of the clinic and new approaches in a work place.
The author has been asked to advise (pro bono) on the establishment of such an innovative clinic at Portsmouth University in the UK for nursing, law and social work students.
This initiative by way of a pilot aims to see work across academic disciplines and with clinical supervisors from different fields designing and teaching together in such a IDSC.
The author notes that a further paper is being developed in collaboration with the Head of Law and Head of Nursing at Portsmouth University that explores these issues in more details.
An Interdisciplinary Student Clinic at University of Portsmouth (UoP): Future Practitioners Working Collaboratively to Improve Health and Wellbeing of Clients (Presentation Slides)
Author(s): Elizabeth Curran
Our paper fits into all the themes ● The clinician and community needs ● The clinician and research into the impact of clinic ● The clinician and academic identity ● The clinician and curriculum and student learning
This paper examines the value in students, academics and clinical supervisors learning and working together across different disciplines through an interdisciplinary student clinic (IDSC) to deliver legal and public health education to people who experience social exclusion by reason of vulnerability or disadvantage (including poverty)– the ‘Health Justice Partnership Student Clinic’.
This paper situates the discussion firstly within the context of author one’s research on multi-disciplinary practices (MDP) including Health Justice Partnerships (HJP) which have led to this decision at University of Portsmouth to set up a IDSC. MDP in this context is where a number of professionals work together in a practice to assist the client using their different skills but in the one place and setting. One subset of an MDP is the HJP which sees lawyers working alongside nursing and allied health professionals to reach clients with a range of problems capable of legal solutions e.g. debt, family violence, poor housing, consumer issues, care and protection, human rights, access to services. It is about going to where people in need of help are likely to turn.
This paper firstly identifies the evidence-based research that has led the authors to see the need, not just for multi-disciplinary practices in a service context but also interdisciplinary practice and teaching opportunities through clinical learning that brings greater collaboration for students, supervisors and academics across the professional divide to improve outcomes for clients. The authors see a critical need in universities to better prepare the emerging professionals to learn about collaboration with other disciplines and demonstrate influence and impact in the wider community. Author one’s empirical research into effective practice also suggests that such collaboration leads to better outcomes for clients and patients especially those experience some form of vulnerability or disadvantage.
Secondly, as there is some literature on IDP and IDSC, (mainly from the United States and Australia) this paper will explore other models, the reasons and rationales for their emergence and the benefits and challenges and how this has informed the development other new pilot IDSC at the University of Portsmouth. The paper then discusses why the IDSC has emerged as an important way of building better and more responsive future practitioners in nursing, law and allied health disciplines.
The paper also discusses aims of the three-year University of Portsmouth pilot IDSC and the joint learning opportunities for students of different disciplines, their supervisors and across departments which are envisioned so as to break down barriers between professionals, enable future practitioners to collaborate across different fields and thereby improve social justice and health outcomes for clients and community. These include fostering and increasing understanding and respect for different professional roles and approaches, breaking down stereotypes, enhancing student employability and working together to better reach and meet client/patient needs by being more responsive to legal and public health needs.
The proposed trial IDSC HJP student clinic course will teach new approaches to students studying nursing, dentistry and law in a joint learning environment that includes problem solving, relationship-building, communication and collaboration skills in a clinic which will provide live client legal and public health advice. It will discuss how this is being undertaken and the challenges and approach of the course and its curriculum.
The paper finally discusses the embedded evaluation of the pilot study. It is embedded as the authors are keen to enable good practice, share lessons learned and inform replicable models in other university settings. The embedded evaluation being undertaken will inform as to the projects impact on students, academic staff, partner agencies and clients.
This Paper was presented to a Roundtable of the National Social Security Rights Network in Canberra on 5 August 2017.
The Paper reports on recent developments in social security law in Australia, particularly with reference to recent decisions of the Commonwealth Administrative Appeals Tribunal and the Federal Court of Australia.
This article analyses the international anti-corruption framework and the peer review monitoring process. Peer review is described as the “systematic examination and assessment of the performance of a state by other states, with the ultimate goal of helping the reviewed state … comply with established standards and principles.” However, despite its growing importance as a regulatory process, peer review has not been comprehensively analysed, resulting in a “literature famine” on its nature and operations. Indeed, to date, there has been very limited academic discussion on peer review. As a result, one aim of this article is to contribute to a stronger understanding of its process. While our focus is on peer review in the anti-corruption context, where possible, universal characteristics of the process are discussed. The second objective of this article is to consider the merits of the peer review process in incentivising states to take action against corruption. Peer review is the mechanism for evaluation of the United Nations Convention against Corruption (UNCAC), the Organisation for Economic Cooperation and Development (OECD) under its Anti-bribery Convention and the African Union’s (AU) good governance objectives under good governance objectives under the Peer Review Mechanism (APRM). Whilst acknowledging the criticisms of peer review, this article argues that peer review has been successful in particular contexts in increasing state compliance with these international instruments. In particular, peer review has contributed to the acceptance of anti-corruption norms and focused on the need for all countries to regulate corruption at the national level.
Author(s): Ron Levy
In this article I examine controversies over the use of referenda and plebiscites for constitutional reform. My chief example is a recent development toward plebiscitary democracy in Australia. Although there is no legal requirement in Australia for a popular vote to legalize same-sex marriage, the federal government considered holding such a vote. Marriage rights provide a key example in which the normative case for direct democratic constitutional reform remains unsettled, and indeed controversial. I rely on deliberative democratic theory to conclude that referenda and plebiscites generally should be part of constitutional reform processes. I nuance this conclusion by outlining categories of legal norms raising distinctive considerations as to whether and when public voting should precede constitutional reform.
Australian Federal Labor, Green and Independent politicians have recently called for a blanket ban on sports-embedded gambling advertising (SEGA), and the Prime Minister has announced that such advertising would be banned during live sporting telecasts before 8.30pm. A considerable body of research establishes the adverse public health impacts of such gambling. The decision of the Australian High Court in Betfair Pty Ltd v Western Australia (2008) 234 CLR 418 paved the way, however, for an expansive online Australian sports-betting market for both interstate operators and internationally located gambling companies. The combination of widespread internet access and smart phone usage has resulted in an environment where placing a bet is more likely to occur in the home in front of children, hence the concern about its “normalisation”. Elite sports people have made public pronouncements that SEGA is now excessive, inconsistent with blanket prohibitions on gambling by elite sports people and damaging to public health. This column critically examines the regulatory landscape governing the advertisement, sponsorship and promotion of SEGA within Australian sport and why the current Bills on this topic do not go far enough.
High Court of Australia and HIV/AIDS Disease Criminalisation: Aubrey V the Queen and Zaburoni V the Queen
In 2017, the High Court of Australia in Aubrey v The Queen (2017) 91 ALJR 601;  HCA 18 considered the term “inflict” grievous bodily harm, under common law, and expanded its interpretation to incorporate nonviolent and non-immediate infection of a disease, overturning a 120 year authority in R v Clarence (1888) 22 QBD 23. In the previous case of Zaburoni v The Queen (2016) 256 CLR 482;  HCA 12, the High Court allowed an appeal from the Qld Supreme Court finding that repeated acts of unprotected sexual intercourse by a man who knew he was infected with HIV/AIDS, though callous and reckless, did not constitute intention to infect his female partner; consequently, he could be found guilty of a lesser offence of inflicting grievous bodily harm which carried a maximum 14-year prison sentence rather than life imprisonment. These decisions illustrate a court intersecting with an emerging trend to use legislation creating criminal offences to deter those who intentionally or recklessly infect others with life-shortening diseases.
Author(s): Margaret Thornton
This article focuses on Edith Haynes' unsuccessful attempt to enter the legal profession in Western Australia. Although admitted to articles as a law student in 1900, she was denied permission to sit her intermediate examination by the Supreme Court of WA (In re Edith Haynes (1904) 6 WAR 209). Edith Haynes is of particular interest for two reasons. First, the decision denying her permission to sit the exam was an example of a 'persons' case', which was typical of an array of cases in the English common law world in the late 19th and early 20th centuries in which courts determined that women were not persons for the purpose of entering the professions or holding public office. Secondly, as all (white) women had been enfranchised in Australia at the time, the decision of the Supreme Court begs the question as to the meaning of active citizenship. The article concludes by hypothesising a different outcome for Edith Haynes by imagining an appeal to the newly established High Court of Australia.
Editor(s): Dennis Pearce, Stephen Argument
Now in its fifth edition, Delegated Legislation in Australia provides updated and detailed coverage of all aspects of subordinate legislation, and is an essential reference for legislators, public officials at all levels of government, judicial officers and lawyers. It is the latest addition to the LexisNexis Black and Silver series.
Legislation made by various government and other bodies under the authority of an Act of Parliament far exceeds in volume the legislation made by Parliament in the form of statutes. Delegated Legislation in Australia includes a comprehensive overview of why and how delegated legislation is used to impose obligations on both citizens and business, and in what forms such legislation takes. Commentary is provided for each Australian jurisdiction as to the means used by Parliament to review the content of the legislation, and assess and compare the performance of each parliament.
Author(s): Anthony Connolly
In The Foundations of Australian Public Law, Anthony J. Connolly brings together the two traditionally discrete areas of constitutional and administrative law to present Australian public law as a single, integrated body. Exploring the themes of state, power and accountability in Australia, the text also makes reference to the law of international jurisdictions, where students are informed by contemporary public law theory. Particular attention is also given to the rise of global public law and the increasingly cosmopolitan nature of the subject in Australia. A comprehensive companion website complements the theory and discussion throughout the text and includes chapter summaries, further readings and discussion questions to encourage extended student learning. Written by a leader in the field, The Foundations of Australian Public Law is a key text for students looking to gain a comprehensive understanding of public law across Australia's federal, state and territory jurisdictions.
Research theme: Administrative Law
Author(s): Cassandra Steer
This article discusses the ways in which International Humanitarian Law (IHL) applies to the domain of outer space. IHL is applicable as a matter of international law, yet outer space poses some challenges when it comes to specific principles and rules. A brief outline is given of some of the kinds of weapons that have been and might be used in space, as well as the ways in which space assets are used with respect to conflicts on Earth. This is followed by an in depth analysis of the core principles of IHL and how they apply: the principles of distinction, proportionality and precaution in attack. While it is imperative that States recognise that IHL is applicable to all their activities in space that involve conflicts on Earth and/or in space, care must be taken in weighing up the traditional principles and their application to this new domain. As the technology that increases war-fighting capability advances, so does the imperative to understand the applicable legal framework for the use of such technology.
Author(s): Cassandra Steer
Given the increase in the number of States and non-State actors becoming active in space, and the increased reliance that militaries have on space technologies, there are growing concerns about the risk of a conflict taking place in outer space. There is currently no binding international legal instrument that effectively deals with conflicts in space. As will be elaborated in this paper, the probability of the conclusion of such an agreement or of any non-binding soft-law instrument in the near future is also very low. We believe that innovative means ought to be devised in this regard. One such means could be the development of a Manual on International Law Applicable to Military Uses of Outer Space (MILAMOS), which would follow in the footsteps of the San Remo Manual on International Law Applicable to Armed Conflict at Sea, the Harvard Manual on International Law Applicable to Air and Missile Warfare, and the more recent Tallinn Manual on International Law Applicable to Cyber Warfare.
Author(s): Pauline Ridge
Peter Birks spearheaded a revolution in thinking about Equity. This paper questions how successful that revolution has been. Two narratives of modern Equity are identified: the revolutionary narrative commenced by Birks and one counter-narrative that is apparent in contemporary case law. Three particular strands of these narratives are then discussed. They concern the integration of the Common Law and Equity; conscience-based reasoning; and judicial method. Illustrations are taken largely from the law governing third party ancillary liabilities that protect equitable rights. Claims against recipients of property protected by Equity, particularly the claim for unconscionable retention of benefit following receipt of misappropriated trust property, are used to illustrate the integration of the Common Law and Equity and the use of conscience-based reasoning. Judicial method is discussed in the context of equitable accessory and recipient liability. Reference is also made to the doctrine of undue influence, the change of position defence, mistaken gifts and private law claims tainted by illegality.
Author(s): Darryn Jensen
This chapter attempts to trace the development of a concept of voluntariness. This cannot be done by reference to a category of 'not-for-profit', for that category is a recent invention. Instead, the history of voluntariness is to be found in the history of two other concepts which might be seen to be distinguishable from government - charity and civil society. These concepts are neither wholly distinct from, nor coterminous with, 'not-for-profit'. Once the histories of these concepts have been considered, the normative determinacy of the concept of voluntariness will be considered in the light of some contemporary intersections of government and not-for-profit activity.
Author(s): Darryn Jensen
This paper evaluates the provisions concerning constructive trusteeship in Trusts Act 1994 (Marshall Islands) and makes more general observations about the roles of constructive trusts in litigation involving trustees' breaches of duty, the roles of statute law and the risk inherent in attempts to express complex and multi-faceted private law concepts in statutory formulae.
A Research and Evaluation Report for the Bendigo Health–Justice Partnership: A Partnership between Loddon Campaspe Community Legal Centre and Bendigo Community Health Services
Author(s): Elizabeth Curran
The Bendigo HJP Research and Evaluation (HJPRAE) was undertaken over three years with an evaluative process embedded in the service from service start-up. At the time it was challenging research as it examines impact and grappled with the internationally renowned challenge of measuring the social determinants of health.
Qualitative and quantitative data have been collected using multiple tools and specific questions.
Findings: 1. The clients of the HJP are complex and more often than not have more than one legal problem and a multitude of other health and social welfare problems. They often feel judged and lack trust in services. They will seek help when they feel they are not judged, where they are respected and where there is service responsiveness. Appointments are problematic – time and place can be critical to engagement, especially for people who have experiences of trauma or negative previous experiences of the legal system. 2. During its life, the Bendigo HJP has provided a significant amount of legal service to clients on a range of matters, often where one client has a significant number of legal issues. The clients’ lives are complicated and building trust takes time. Given the project has only one lawyer co-located at the HJP, the number of clients and client problems tackled is significant in view of the limited staff, funding and resources. 3. The Bendigo HJP is reaching clients who would otherwise not have sought legal help. The role of their trusted health or allied health professional in facilitating that reach has been overwhelmingly critical – 90% of clients interviewed in the HJPRAE said that without the HJP they would not have sought legal help. 4. Clients who have multiple and complex problems reported they were anxious and frightened as they did not know their rights/position. They reported this impacted on their health and wellbeing. The effectiveness and quality of the HJP service and its impact as reported by health/allied health professionals delivered the following relevant responses: • confidence in engaging with services in clients to have increased by 90.9% • knowledge of rights and responsibilities in clients to have increased by 72.7% • knowledge of options and more skilled over time in clients to have increased by 90.9%. 5. The capacity of professionals, due to the HJP, to respond to legal issues with confidence has increased; that is, they have become ‘empowered’.
General Application to Other Replicable Models of HJP Clients turn to ‘trusted’ health/allied health professionals but may not turn to lawyers without the facilitation and transferral of trust. Some clients will not turn to a lawyer as they are not emotionally ready (e.g., due to trauma, fragility, fear) and so the health/allied health professional that they trust becomes an important intermediary for them to gain legal help and information at salient times. A service which is a HJP needs to be ‘opportunistic’ in taking advantage of clients’ health appointments to provide legal assistance – due to complexities of their lives and confusion, lack of confidence and being overwhelmed etc. The capacity of professionals, both lawyers and non-lawyers, as well as client service staff, is key/critical to being able to support clients in a timely way, when in crisis or ready for help. Legal Secondary Consultations (LSCs) ‘are pivotal’; ‘it would not work if we did not have LSCs’. A significant majority of research participants noted that the LSC enables quick, efficient and targeted building of knowledge which can ‘save time’ in the long run. The type of lawyer used has been critical to the success of the Bendigo HJP and should be considered when hiring and recruiting staff. Lawyers can’t ‘just sit in their office’ but need to interact, integrate, not be ‘too stuffy’ or ‘too hierarchical’, ‘avoid jargon’ and show ‘respect’. The type of person used in the role is key to the HJP’s success. Trust and relationships take time to demonstrate an impact and their effectiveness as they are predicated on relationships, human experience, confidence and positive interactions and cannot be driven by a ‘top down’ approach.
Being Well in the Law is a toolkit for lawyers. It has been well informed by the input of experts from the Australian National University and Sydney University, as well as a range of other experts. It draws heavily on multidisciplinary knowledge embracing mindfulness and meditation, and evokes ideas to help us switch off from other thoughts and focus only on the moment, helping to alleviate anxiety.