Women Judges, Private Lives: (In)Visibilities in Fact and Fiction
Once unseen, women are now visible in increasing proportions on the bench in common law courts, although this reality has generally not percolated into fictional worlds, where ‘the judge’ is invariably male. Fiona, cast by Ian McEwan as the protagonist, in The Children Act, is a notable exception. In the novel, McEwan directs our gaze beyond the traditional separation of judicial identity into public/private (visible/invisible) facets of life and raises questions regarding the impact of life on law, and law on life. This article draws on McEwan’s work to illuminate a study of how judicial swearing-in ceremonies tell the stories of Australian women judges. At first glance, this may seem an unusual pairing: The Children Act is an international best-selling work of fiction whereas the official records of court ceremonial sittings are a somewhat obscure body of work largely overlooked by scholars. However, the speeches made in welcome in open court on these occasions by members of the legal profession and by the new judge in reply, offer glimpses of the attributes of women judges not discernible in formal judgments. These ‘minor jurisprudences’ challenge the familiar gendered stereotypes found in the sovereign body of law.
Defining 'Supply Chain' for Reporting Under a Modern Slavery Act for Australia
Author(s): Jolyon Ford
Australia proposed a Modern Slavery Act based on the UK's 2015 model, requiring larger firms to report annually on steps taken to address the risk of modern slavery in their operations and supply chains. This working paper has two main arguments. First, the approach to defining (or not) ‘supply chain’ is not a mere technical drafting issue, but instead can be seen as going to the overall purpose of this regulation and as a metaphor for more general design philosophies or approaches in this sphere. Second, an Australian statute should refrain from any attempt at a statutory definition of ‘supply chains’ or any definition in ancillary regulations; however, authorities should offer reporting entities far more extensive policy guidance than the UK model has done. Aside from the generic drafting difficulty of finding a stable, commercially sensible definition, the paper explains at least three reasons why the statutory scheme should not seek to define ‘supply chains.’
Power, Control and Citizenship: The Uluru Statement from the Heart as Active Citizenship
Author(s): Kim Rubenstein
Who governs and how they govern is central to the questions of power, control and citizenship that are at the core of a democratic society. The Uluru Statement from the Heart is the outcome of the 12 First Nations Regional Dialogues culminating in the National Constitutional Convention at Uluru in May 2017. There the First Peoples from across the country formed a consensus position on the form constitutional recognition should take. This article argues that the Uluru Statement from the Heart affirms a commitment to ‘active citizenship’ that draws from a belief in the equal power of the governors and the governed. This understanding of the Uluru Statement from the Heart enables it to be promoted as a document for all Australians, both in the spirit of reconciliation and in its affirmation of a commitment to an equality underpinning Australian citizenship in the 21st century. By examining how citizenship in Australia has evolved as a legal concept and by reflecting on how law is a fundamental tool for providing a ‘meaningful limitation of the lawgiver’s power in favour of the agency of the legal subject’, this article examines the Uluru Statement from the Heart as a commitment to the importance of recognising the nature of the proper relationship between the law giver and those subject to the law — the citizenry. To exercise power within a democratic framework, as opposed to brute force or sheer will over the subject, involves recognising the agency of the citizenry. This idea not only enables reconciliation to be a meaningful and restorative act but one that recalibrates the exercise of power in Australia to benefit all Australians by affirming a commitment to all Australians equal citizenship as active agents.
Challenging the Legal Profession A Century On: The Case of Edith Haynes
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.
The Deliberative Case for Constitutional Referenda
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.
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.
'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.
First Research and Evaluation Report Phase One Consumer Action Law Centre Project – Responding Effectively to Family Violence Dimensions of Debt and Credit Through Secondary Consultations & Training with Community Professionals
Author(s): Elizabeth Curran
The Report of the Royal Commission into Family Violence recognised that the family violence victim’s financial security impacts on their wellbeing. Beyond the role of the perpetrator of violence, many problems interact in relation to family violence related debt: 1. The considerable difficulties victims face in asserting and enforcing their financial rights alone; 2. A systemic failure by financial and utility service providers “to understand, identify and respond to economic abuse”; and 3. Inadequate legal and regulatory protections. This Research and Evaluation Report Phase One, evaluates whether the aim of this project to provide a Secondary Consultation (SC) service integrated with Consumer Action’s Training and Outreach program providing training, resources and support to community workers (‘community professionals’) to overcome barriers identified in previous studies by working with trusted community professionals to whom people experiencing family violence are likely to turn to enable their credit & debt legal issues is being addressed in a timely and effective way. The data discussed and analysed for this report including the proxies or benchmarks, set for this research evaluation are being achieved namely engagement, capacity, collaboration and empowerment however there are still some areas for improvement, which is only natural when this project is in its infancy and the issues as the Royal Commission highlights are so vexed and complex. The in-depth interviews reflect that trust and reliability are critical in gaining secondary consultations and referrals. The former being identified (as in other studies ) as critical if the latter are to flow. The qualitative data suggests that Consumer Action is starting to build trust and relationships but there are notes of warning from the interview participants about a need for clarity around the extent and resources and types of matters Consumer Action can assist with and offer support on. This the research participants 5/6 noted can also give them confidence and greater certainty as they support their clients through family violence and debt and credit related issues. The research data consistently highlights the value of secondary consultations (5 out of 6 of the participants strongly agree to its value) in providing efficient, effective and responsive timely secondary consultation to community professionals especially where clients may: not be emotionally ready to see a lawyer, have too many issues weighing on them, or have had poor experiences of lawyers. The latter is consistent with other research but seems to be addressed, as the participants noted in the in-depth interviews with the style of community lawyering that is approachable and practical and considers context. Consumer Action has delivered training sessions which double the number which the funding requires. This is a critical part of building the awareness not only of the service but of the range or problems capable of a legal solution, building trust and relationships and capacity to respond of agencies and other community professionals into the future beyond the extensive reach that Consumer Action already has, to financial counsellors. Noted by all interview participants was that secondary consultations are invaluable as they build trust, provide a form of instant on the spot training, especially for professionals and their clients in rural locations, which are being used to extend the reach of Consumer Action to clients beyond those for whom the initial consultation is sought as the information has wider utility. It can be timely and there is no intake process that for other services can present barriers.
Court Records As Archives: The Need for Law Reform to Ensure Access
The Federal Court of Australia performs a fundamentally important role within Australia’s democratic system. It has served as a site for the disputation, negotiation and resolution of issues fundamentally important to Australian society. It does so in the context of a constitutional system affirming the principle of separation of powers and the rule of law, as a means of preserving and enforcing the rights of individuals and navigating the boundaries of the powers of the state. In that context, its records, gathered both through the internal workings of the court and through the cases that come before it, contain a narrative shaping our contemporary understanding of the rights of the individual and the role of the state. Despite the importance of its records in that narrative, the preservation and access to the Federal Court’s records continues to be seen through the lens of traditional understandings of the management of litigation. This paper explores the Federal Court’s role within the broader context of constructing our understanding of the roles and responsibilities of citizenship and illustrates the importance of the Court’s records as an archival resource. In doing so, it highlights the parallels and inconsistencies between traditional archival institutions and the Court in relation to selection, preservation and access to records.
Empty Rituals or Workable Models? Towards a Business and Human Rights Treaty
Author(s): Jolyon Ford
In this article, we do not seek to engage directly with ongoing discussions regarding the potential merits, and conversely the risks, of seeking to conclude a Business and Human Rights (BHR) treaty at all. Instead, our aim is to promote a greater focus, in the context of the BHR treaty debate, on regulatory effectiveness. That is, we believe that proposals for a BHR treaty should be assessed in terms of their likely efficacy, relative to other available forms of regulatory intervention, in advancing effective enjoyment of human rights in the business context. Whereas many contributions to the BHR treaty debate so far have explicitly or implicitly advocated one or other treaty model they have side-stepped the difficult question of how practically effective these models might be in influencing the conduct of duty bearers.
Voting Rights and Australian Local Democracy
Author(s): Ryan Goss
ABSTRACT: In five of Australia’s six States, legislation governing the franchise at local government elections allows for voting rights based partly on property ownership or occupation, for votes for corporations, and for various forms of plural voting. There is no existing comprehensive nationwide catalogue and analysis of the legislation that underpins this phenomenon. This article fills the gap in the literature by providing that analysis. Part I provides a concise overview of the historical context in Britain and in Australia. Part II is the central contribution of the article, describing and analyzing the legislation across the six Australian States. Part II demonstrates the idiosyncratic complexity of local government franchises within and across the States. While this article’s primary goal is to critique the legislation as it stands, Part III concisely makes the case for reform of voting rights at local government elections, suggesting that the status quo raises concerns about democratic inequality.
Achieving the Sustainable Development Goals: Promoting Cooperation and Sustainability
Author(s): Molly Townes O'Brien
To combat the complex problem of world poverty, the United Nations General Assembly set out eight Millennium Development Goals (MDGs), but as poverty decreases, energy consumption and pollution increase. Largely due to this complication, the MDGs were replaced in September 2015 with the Sustainable Development Goals (SDGs). The SDGs include new priorities such as climate change, economic inequality, innovation, sustainable consumption, and peace and justice. Successful development involves more than avoiding poverty. To achieve the sustainable development goals, we have to know what they are and why they were introduced. We need to teach them to our students, who will carry the goals into their future work places.
How the Higher Education 'Industry' Shapes the Discipline of Law
Author(s): Margaret Thornton
This article argues that a constellation of factors combine to encourage law graduates to pursue a career in corporate law at the expense of alternative destinations. Most notable are the increasingly high tuition fees law students are charged, but the respective roles of government, the admitting authorities, law schools and the profession cannot be discounted. Each change in policy renders resistance more difficult. The proposed higher education changes contained in the 2017 Australian Federal Budget are exemplary. As it is already assumed that law can be offered cheaply while charging high fees, the Budget cuts could induce universities to increase the number of law students as well as the cost of discretionary law degrees, such as the Juris Doctor. This would not only increase competition for law-related jobs in the labour market, but it would also effect a more vocational orientation to the law curriculum.
A People's Federation? Populism, Deliberation and Federal Reform
Author(s): Ron Levy
In some ways populism provides a starkly poor fit to federal decision making – including decision making about a federation itself. As I describe in this chapter, contemporary populism is at once impatient for, and prone to derailing, federal reform. However, after diagnosing problems, I turn to consider institutional routes around them. The best solutions – those perhaps most able to restart stalled progress toward reform – may be those aiming to harness and redirect, rather than deny, populism’s rising tide. In this regard, deliberative democratic approaches to reform appear to hold particular promise.
Deliberation at the Founding: Deliberative Democracy as an Original Constitutional Value
Author(s): Ron Levy
This article examines whether Australia’s constitutional founders intended that a deliberative form of democratic government should govern federally in Australia. Deliberative democratic ideals have long occupied a prominent place in democratic theory. However, they have seldom been brought to bear in a sustained way on historical questions about Australia’s constitutional design. For constitutional scholars, democratic deliberation is now generally a forgotten element of the Australian constitutional system. We show here how the framers concerned themselves with democratic deliberation, including how precisely they envisaged deliberative democratic practices during the federation Conventions and within the new federation. Our focus is on the framers’ understandings of deliberation within the institution of Parliament, and the subsidiary issues bearing on that question such as the relationship between Parliament and the executive and the role of political parties. Our research suggests that deliberative democracy should assume a prominent place alongside more widely acknowledged original constitutional values.
'Measuring Impact and Evaluation: How and Why? And Some Tips': Workshop 10 – 11 November 2016 for Law Centres Network UK National Conference (Presentation Slides)
Author(s): Elizabeth Curran
This workshop was a practical workshop for Law centres across the UK about why evaluation of services to ascern effectiveness, quality and impact on clients and community is key It flagged some of the challenges of measuring impact, lessons and summarised key literature and research in the area. It also relayed experience of conducting such research and evaluation work and noted some cautions.
The workshop shared some ‘how to's’ from a vantage point of agencies who have limited resources but which would like to provide evidence of what they do, why they do it and how it has an impact, thus building an evidence base for what works well and why.
The workshop concluded by encouraging participants with some guidance from Dr Curran on how to identify some of the outcomes and way they might measure these and impacts of their service on clients and community.
Draft Working Paper for a Research and Evaluation Report for the Bendigo Health–Justice Partnership: A Partnership between ARC Justice Ltd and Bendigo Community Health Services
Author(s): Elizabeth Curran
This report documents the reasons for health justice partnerships, the literature, the methodology, the field research which used a participatory action research approach with a continuous learning and development framework. This Draft Working Paper sets out the summary of qualitative and quantitative data, the findings, conclusions lessons and recommendation emerging from this longitudinal study on the Bendigo Health Justice Partnership, in advance of the Full Final Research and Evaluation Report which will be released in 2017.
ARC Justice (specifically one of its programs, the Loddon Campaspe Community Legal Centre (LCCLC)) and the Bendigo Community Health Service formed a partnership in 2013 to commence a Health Justice Partnership (HJP) in January 2014 to better reach those clients experiencing disadvantage.
ANU (through the author Dr Liz Curran) was commissioned to conduct empirical research and an evaluation of the pilot project's impact on the social determinants of health, its outcomes and the effectiveness of Health Justice Partnerships in reaching clients who would otherwise not gain legal help with a range of problems capable of a legal solution.
This Draft Working Paper is released, in advance of the Full Final Report, so that agencies, researchers and funders and policy makers developing or working in Health Justice Partnerships or multi-disciplinary practices can benefit and be informed by the research and evaluation given the wide range of issues emerging from the research canvasses while the Full Final Report is finalised.
The Full Final Research & Evaluation Report will be released in 2017 but, in the interim, people using SSRN can utilise the research for their work. This responds to the numerous requests to share the research at the earliest opportunity so as to inform service delivery and funding applications which may occur before the release of the Final Report.
Seminar: ‘Reaching People Currently Excluded by Improving Access to Justice Through Multi-Disciplinary Practices’: Health Justice Partnerships - Recent Research Findings’ (Presentation Slides)
Author(s): Elizabeth Curran
This seminar examined recent research findings from the author's research and evaluation of the Bendigo Health Justice Partnerships in a rural & regional are of Victoria based at the Bendigo Community Health Service at its site in a low -socioeconomic area in Australia, as a case study.
The paper also drew on Dr Curran's other research and some of the other research and literature on what can lead to effective legal service delivery and have a positive impact on outcomes and the social determinants of health.
The paper also highlighted the importance of professionals working together to better reach many in the community who have not been accessing legal help due to significant barriers, some of which are systemic, and what the quantitative and qualitative researcher data suggest are key elements in Health Justice Partnerships and Multi-disciplinary practices if they are to be effective.
The author highlights difference between models in the UK, USA and Australia but suggests the research still has some valuable lessons.
Dr Curran stressed that the qualitative data reveals that relationships, respect and trust, emerge as key, for effective services as legal assistance service is essentially human service delivery to people who have complex and multiple issues that make engagement difficult.
Dr Curran cautions against 'top down' 'siloed' service delivery noting that the evidence based research she has undertaken suggests that participatory service delivery that engages, builds capacity, collaborates and empowers providing a voice for community and professionals who deliver the services are all critical for an effective, efficient and well targeted service which the research is suggesting HJP can be if it has such elements in its approach.
Human Rights and Realizing the Right to Health for the Most Disadvantaged – Health Justice Partnerships (Presentation Slides)
Author(s): Elizabeth Curran
This seminar/workshop examines innovations such as multi-disciplinary practice, specifically Health Justice Partnerships (HJP) and how they can enhance human rights adherence and protection.
Services are already hard to navigate for the most vulnerable and disadvantaged. Even where there is no court or tribunal case involved access to legal advice can be critical. It can save mistakes being made, help people understand their rights and responsibilities and according to my research on the impact of HJP's through evidence based field research, such models lead to early intervention and often prevention of problems or their escalation. Fundamental universal human rights such as the right to income support, the right not to experience inhumane or degrading treatment including poor housing, and rights to safety are all aspects that can see vulnerable and disadvantaged people needing legal advice and support.
It is also critical to the Rule of Law. (See author's comments, Chapter 1 (21) ‘Access to Justice’ Global Perspectives on Human Rights (3rd edition, 2015) OHRH, at 22).
This seminar/workshop discusses some of the human rights settings and what HJP can to do help realise rights to health and well being that are effected by the social determinants of health.
It examines some research and findings of the author including the types of lawyers that are critical to successful lawyering and health service support if those programs/services are to be effective in engaging the most vulnerable. The presentation also suggests how HJP might be explored in student clinics and in non government organisations doing work in developing countries which have limited resources and where the reach of HJPs, collaboration and capacity building can be critical. This feeds into Sen's notions of capability and empowerment and the critical importance of systemic work to solve the causes of problems including the alleviation of poverty.
Realizing the Right to Health and Access to Justice for the Most Disadvantaged – Health Justice Partnerships (Presentation Slides)
Author(s): Elizabeth Curran
This Seminar was presented to post graduate students, academic staff and members of non-government organisations and examines recent evidence based research that examines the impact of Multi-Disciplinary Practice such as a Health Justice Partnership (HJP).
The seminar explores the HJPs impact on improving the outcomes of the social determinants of health for clients with legal problems that would otherwise not have been identified or resolved but for the HJP.
It also canvassed empirical data suggestive that there had also been enhancements to the professional capacity of lawyers, health and allied health professionals through working within an HJP setting that benefit clients and enable further reach in resolving legal problems capable of a solution.
Using research in Bendigo a regional, rural of Victoria, Australia the seminar discusses the nature of the research undertaken and key findings. The discussion then led to ideas around expansion of the HJP model in a Danish setting.