Publications

This is a searchable catalogue of the College's most recent books, book chapters, journal articles and working papers. The ANU College of Law also publishes a Research Paper Series on SSRN.

Teaching Professionalism in Legal Clinic

Teaching Professionalism in Legal Clinic – What New Practitioners Say is Important

Author(s): Tony Foley, Vivien Holmes, Stephen Tang

Anecdotal evidence suggests new lawyers may struggle as they begin legal practice. Little is known empirically about their actual experiences. This paper provides some insights into what occurs in this transition. It reports on a qualitative study currently underway tracking new lawyers through their first year of practice. Preliminary analysis of data from interviews and from workplace observations suggests clinical legal education can play a significant role in smoothing the transition and helping new lawyers develop their sense of professionalism.

This project builds on similar UK research which followed law graduates into their vocational training year. The authors tracked new lawyers in the context of their post-admission practice with a small cohort of recently admitted lawyers interviewed and observed in their day to day practice. This paper describes what these new lawyers say is important to an effective transition – developing autonomy, learning to deal with uncertainty and finding an accommodation between their developing professional values and those modelled by their firm and colleagues. Clinical programs offer opportunities for an early reflective exposure to these experiences.

Read on SSRN

Centre: CIPL

Research theme: Criminal Law, Health, Law and Bioethics, Indigenous Peoples and the Law, Law and Psychology, Legal Education, Regulatory Law and Policy, The Legal Profession

Teaching Professionalism in Legal Clinic

Teaching Professionalism in Legal Clinic – What New Practitioners Say is Important

Author(s): Tony Foley, Vivien Holmes, Stephen Tang

Anecdotal evidence suggests new lawyers may struggle as they begin legal practice. Little is known empirically about their actual experiences. This paper provides some insights into what occurs in this transition. It reports on a qualitative study currently underway tracking new lawyers through their first year of practice. Preliminary analysis of data from interviews and from workplace observations suggests clinical legal education can play a significant role in smoothing the transition and helping new lawyers develop their sense of professionalism.

This project builds on similar UK research which followed law graduates into their vocational training year. The authors tracked new lawyers in the context of their post-admission practice with a small cohort of recently admitted lawyers interviewed and observed in their day to day practice. This paper describes what these new lawyers say is important to an effective transition – developing autonomy, learning to deal with uncertainty and finding an accommodation between their developing professional values and those modelled by their firm and colleagues. Clinical programs offer opportunities for an early reflective exposure to these experiences.

Read on SSRN

Centre: CIPL

Research theme: Criminal Law, Health, Law and Bioethics, Indigenous Peoples and the Law, Law and Psychology, Legal Education, Regulatory Law and Policy, The Legal Profession

Did She Consent? Law and the Media in New South Wales

Author(s): Anthony Hopkins

Legislative reform to the law of sexual assault in New South Wales in 2007 emphasises that those who wish to engage in sexual intercourse must take steps to ensure that they do so with consent. The new laws’ intent was to ensure free, voluntary and communicated consent, and to punish those who take advantage of the intoxication of their victim, or seek to hide behind their own intoxication. Further, the intent was to promote awareness and expectation with respect to acceptable consensual sexual activity. This article identifies a discord between this legislative intent and the reporting and commentary in the newsprint media which continues to focus on victim intoxication and behaviour as a matter of ‘risk’. The contention here is that until the legislative intent is reflected in the newsprint media the national conversation on sexual assault will remain impoverished, limiting the potential to focus the spotlight on perpetrators.

Read on SSRN

Centre: CIPL

Research theme: Criminal Law, Indigenous Peoples and the Law, Law and Gender, Law and Social Justice, Legal Education, The Legal Profession

Fitzpatrick, Property and Social Resilience

Property and Social Resilience in Times of Conflict: Land, Custom and Law in East Timor

Author(s): , Andrew McWilliam, Susana Barnes

Peace-building in a number of contemporary contexts involves fragile states, influential customary systems and histories of land conflict arising from mass population displacement. This book is a timely response to the increased international focus on peace-building problems arising from population displacement and post-conflict state fragility. It considers the relationship between property and resilient customary systems in conflict-affected East Timor. The chapters include micro-studies of customary land and population displacement during the periods of Portuguese colonization and Indonesian military occupation. There is also analysis of the development of laws relating to customary land in independent East Timor (Timor Leste). The book fills a gap in socio-legal literature on property, custom and peace-building and is of interest to property scholars, anthropologists, and academics and practitioners in the emerging field of peace and conflict studies.

Order your copy online

Centre: LGDI

Research theme: Human Rights Law and Policy, Indigenous Peoples and the Law, International Law, Law, Governance and Development, Migration and Movement of Peoples

A Puppy Lawyer is Not Just for Christmas

A Puppy Lawyer is Not Just for Christmas: Helping New Lawyers Successfully Make the Transition to Professional Practice

Author(s): Tony Foley, Vivien Holmes, Stephen Tang

The research reported here is a pilot project which investigated the transitionary period from study to work for entry-level lawyers. The research was designed to identify factors which may assist new lawyers in making this a successful transition.

This is crucial research. There is no similar empirical work in Australia focusing on the transition towards a legal professional. The support and endorsement of the Law Society of the Australian Capital Territory ensured that the pilot could provide some valuable preliminary data.

The design of the study consisted in tracking a small sample of newly admitted lawyers who volunteered to be followed through their first year. The sample consisted of eleven participants (4 male and 7 female) employed variously in private and public practice in the territory. Their median age was 25 years. They worked in a range of different practices – small, medium and large private firms, and government legal practices, legal aid and community legal centres.

Data was collected between 2009 and early 2011. The study used a multi-method qualitative research approach to gather information through interviews, participant observation and self-recording of daily work activity.

Data analysis showed the crucial importance of appropriate supervision and mentoring to new lawyers’ capacity to gain autonomy and competence. Also notable was new lawyers’ need to see their work as intrinsically worthwhile, either when it provided a direct public service or more indirectly. Pro bono work was important to them. New lawyers were also keenly alert to the real ethical climate of the practice in which they worked. The way a practice treated its staff (both professional and support) was seen as a reliable indicator of its ethical culture.

Read on SSRN

Centre: CIPL

Research theme: Criminal Law, Health, Law and Bioethics, Indigenous Peoples and the Law, Law and Psychology, Legal Education, Regulatory Law and Policy, The Legal Profession

Creating the Right Spaces: Civil Participation and Social Inclusion: A Report on West Heidelberg Residents' Conflict Management Workshops

Author(s): Elizabeth Curran

The report is written with the view that the workshops and the lessons drawn from them can aid in providing a community engagement model for other residential groups in different localities as well as for other community projects with different social groups. With this aim in mind, the hope is to encourage the completion of the project as envisaged which involves a comprehensive approach to civil participation, conflict management and constructive communication involving all sectors of civil society.

The report outlines the approach taken to the workshops and their outcomes and some of the challenges for communities who feel excluded and who may not have had positive experiences or training in how to navigate complex systems and have conversations. It makes some recommendations and outlines some of the lessons learned by all.

The workshops achieved the overall goal of the ‘Creating Right Spaces’ project: of benefiting people with the least access to justice and community development to voice their concerns and learn some skills that could be helpful to them. This was achieved on a small scale and yet this project demonstrates how beneficial such a program can be as well as the importance of it being a continuing project. “One off” funding misses the opportunity for ongoing recurrent work. Continued support is necessary if any real gains are to be made to ensure behaviour change and ongoing skills development and to ensure that the work can transcend often fixed negative patterns of behaviour and give people the capacity to generate real, long lasting and sustainable positive change.

The extraordinary richness of the interactions that arose in the workshops occurred not just from the stories shared and the skills learnt together but, in the words of the residents, from the growing awareness of how the strength of a community comes from within the community itself and its ability to organise, support and respect its members as well as learn more about creating better relationship and engagements. There was individual and collective growth which involved rekindling a sense of being worthy of happiness, opportunities, and a better future – and this happened because the group itself supported each person to take risks, acknowledged each other’s strengths and weaknesses, and demonstrated honesty, respect and gratitude.

Read on SSRN

Centre: CLAH

Research theme: Health, Law and Bioethics, Human Rights Law and Policy, Indigenous Peoples and the Law, Law and Social Justice, Legal Education, The Legal Profession

Criminal Law: Defences to Homicide

Criminal Law: Defences to Homicide

Author(s): Anthony Hopkins

This chapter explores a few of the contexts and the defences for women who kill in Australia. Focusing on battered women who kill, women with PMS and women with post-partum depression, we examine what lawyers should look for in the cases, how to communicate with their clients most effectively to identify whether these background variables were present, possible pleas to argue, and how best to help the Court to hear the women’s case.

Read on SSRN

Centre: CIPL

Research theme: Criminal Law, Indigenous Peoples and the Law, Law and Gender, Law and Social Justice, Legal Education, The Legal Profession

Walking in Her Shoes

Walking in Her Shoes: Battered Women Who Kill in Victoria, Western Australia and Queensland

Author(s): Anthony Hopkins

In the light of the common law doctrine of self-defence in Australia, this article considers legislative reforms in Victoria, Western Australia and Queensland to determine the extent to which they require judges and jurors to walk in the shoes of battered women in pursuit of an evaluation of reasonableness. It will be argued that, with the exception of Queensland, which has emphasised the necessity to judge reasonableness from the perspective of the battered woman only in so far as this may enable a verdict of murder to be reduced to manslaughter, the reforms have clarified or extended the common law position.

Read on SSRN

Centre: CIPL

Research theme: Criminal Law, Indigenous Peoples and the Law, Law and Gender, Law and Social Justice, Legal Education, The Legal Profession

Curriculum (Re)Development ‘On the Job’ in Higher Education

Curriculum (Re)Development ‘On the Job’ in Higher Education: Benefits of a Collaborative and Iterative Framework Supporting Educational Innovation

Author(s): Tony Foley

This paper concerns curriculum development for online learning in a commercial law course using a process of sustained action-research. We identify and discuss four main characteristics in this process: a need to respond to an external requirement for change (i.e. going online): one or two key guiding teaching and learning principles; an incremental, flexible timeline over three consecutive iterations; a collaborative, supportive partnership between educators and educational consultants . There were two levels of action: learning what was required for curriculum redevelopment and learning about the process of supporting educational development itself. Substantive outcomes included the: sustained adoption of the practices of active learning and curriculum alignment; conceptual development of discussion as a learning tool; acceptance of the fundamental value and practical role in developing purposeful reflection provided by a ‘critical friend.’

Read on SSRN

Centre:

Research theme: Criminal Law, Indigenous Peoples and the Law, Legal Education, The Legal Profession

Curriculum (Re)Development ‘On the Job’ in Higher Education

Curriculum (Re)Development ‘On the Job’ in Higher Education: Benefits of a Collaborative and Iterative Framework Supporting Educational Innovation

Author(s): Tony Foley

This paper concerns curriculum development for online learning in a commercial law course using a process of sustained action-research. We identify and discuss four main characteristics in this process: a need to respond to an external requirement for change (i.e. going online): one or two key guiding teaching and learning principles; an incremental, flexible timeline over three consecutive iterations; a collaborative, supportive partnership between educators and educational consultants . There were two levels of action: learning what was required for curriculum redevelopment and learning about the process of supporting educational development itself. Substantive outcomes included the: sustained adoption of the practices of active learning and curriculum alignment; conceptual development of discussion as a learning tool; acceptance of the fundamental value and practical role in developing purposeful reflection provided by a ‘critical friend.’

Read on SSRN

Centre:

Research theme: Criminal Law, Indigenous Peoples and the Law, Legal Education, The Legal Profession

Australian Legal Procedures and the Protection of Secret Aboriginal Spiritual Beliefs: A Fundamental Conflict

Author(s): Ernst Willheim

The essays in this book explore the intersections between law and religion. When Australian law intersects with Aboriginal religion the outcome is a massive collision. This essay explores that collision, a collision between core legal values of the dominant legal system and core religious values of a small minority group, Aboriginal Australians. That collision, or conflict, arises because Aboriginal religions are fundamentally different from mainstream religions. That difference is legally significant. But the dominant legal system has failed to accommodate the difference. In this essay I contend that Australian law has failed to resolve a fundamental conflict between, on the one hand, basic common law values including openness and transparency in public administration, open administration of justice, a legal culture that gives special weight to the protection of private property interests and, on the other hand, Aboriginal religious values, in particular, the secret nature of much Aboriginal religious belief. I further contend that, because Australian law has failed adequately to recognize and to adapt to the secret nature of much Aboriginal religious belief, because common law values particularly principles directed at protection of private property interests prevail, laws enacted for the purpose of protecting Aboriginal religious beliefs have failed to achieve their purpose. The final part of the essay offers suggestions for reform, including mechanisms for protecting the confidentiality of secret spiritual beliefs.

Read on SSRN

Centre: CIPL

Research theme: Indigenous Peoples and the Law

Environmental Conflict Resolution: Relational and Environmental Attentiveness as Measures of Success

Author(s): Tony Foley

When evaluating the success of environmental conflict resolution (ECR), the use of traditional measures of success, such as agreement counting and participant satisfaction surveys provide an incomplete picture. This article proposes two measures to evaluate ECR in terms of both process and outcome: Is the process transformative of the participants? Is the process designed to be attentive to environmental outcomes?

Read on SSRN

Centre:

Research theme: Criminal Law, Indigenous Peoples and the Law, Legal Education, The Legal Profession

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