Continuous and pedagogically sound assessment : A new economy of power relations in Australian Law schools

In recent decades, assessment practices within Australian law schools have moved from the overwhelming use of end-of-year closed-book examinations to an increase in the use of a wider range of techniques. This shift is often characterised as providing a ‘better’ learning environment for students, contributing more positively to their own ‘personal development’ within higher education, or, considered along the lines of critical legal thought, as ‘liberating’ them from the ‘conservatising’ and ‘indoctrinating’ effects of the power relations that operate in law schools. This paper seeks to render problematic such liberal-progressive narratives about these changes to law school assessment practices. It will do so by utilising the work of French historian and philosopher Michel Foucault on power, arguing that the current range of assessment techniques demonstrates a shift in the ‘economy’ of power relations within the law school. Rather than ‘liberating’ students from relations of power, these practices actually extend the power relations through which students are governed. This analysis is intended to inform legal education research and assessment practice by providing a far more nuanced conceptual framework than one that seeks to ‘free’ law students from these ‘repressive’ practices, or hopes to ‘objectively’ contribute to their ‘personal development’.

The rules of autogeddon : sex death and law in J G Ballard’s Crash

It was reported that the manuscript of Crash was returned to the publisher with a note reading ‘The author is beyond psychiatric help’. Ballard took the lay diagnosis as proof of complete artistic success. Crash conflates the Freudian tropes of libido and thanatos, overlaying these onto the twentieth century erotic icon, the car. Beyond mere incompetent adolescent copulatory fumblings in the back seat of the parental sedan or the clichéd phallic locomotor of the mid-life Ferrari, Ballard engages the full potentialities of the automobile as the locus and sine qua non of a perverse, though functional erotic. ‘Autoeroticism’ is transformed into automotive, traumatic or surgical paraphilia, driving Helmut Newton’s insipid photo-essays of BDSM and orthopædics into an entirely new dimension, dancing precisely where (but more crucially, because) the ‘body is bruised to pleasure soul’. The serendipity of quotidian accidental collisions is supplanted, in pursuit of the fetishised object, by contrived (though not simulated) recreations of iconographic celebrity deaths. Penetration remains as a guiding trope of sexuality, but it is confounded by a perversity of focus. Such an obsessive pursuit of this autoerotic-as-reality necessitates the rejection of the law of human sexual regulation, requiring the re-interpretation of what constitutes sex itself by looking beyond or through conventional sexuality into Ballard’s paraphiliac and nightmarish consensual Other. This Other allows for (if not demands) the tangled wreckage of a sportscar to function as a transformative sexual agent, creating, of woman, a being of ‘free and perverse sexuality, releasing within its dying chromium and leaking engine-parts, all the deviant possibilities of her sex’.

The borders that law sets on entertainment

It is natural for those involved in entertainment to focus on the art. However, like any activity in even a free society, those involved in entertainment industries must operate within borders set by the law. This article examines the main areas of law that impact entertainment in an Australian context. It contrasts the position in relation to freedom of expression in Australia with that in the United States, which also promotes freedom of expression in a free society. It then briefly canvases the main limits on entertainment productions under Australian law.

Technology : new horizons in teaching law

17.1 Up until the 1990s the methods used to teach the law had evolved little since the first law schools were established in Australia. As Keyes and Johnstone observed: In the traditional model, most teachers uncritically replicate the learning experiences that they had when students, which usually means that the dominant mode of instruction is reading lecture notes to large classes in which students are largely passive. Traditional legal education has been described in the following terms: Traditionally law is taught through a series of lectures, with little or no student involvement, and a tutorial programme. Sometimes tutorials are referred to as seminars but the terminology used is often insignificant: both terms refer to probably the only form of student participation that takes place throughout these students‘ academic legal education. The tutorial consists of analysing the answers, prepared in advanced (sic), to artificial Janet and John Doe problems or esoteric essay questions. The primary focus of traditional legal education is the transmission of content knowledge, more particularly the teaching of legal rules, especially those drawn from case law. This approach has a long pedigree. Writing in 1883, Dicey proposed that nothing can be taught to students of greater value, either intellectually or for the purposes of legal practice, than the habit of looking on the law as a series of rules‘.

International law and the regulation of violence : shifting perceptions of the legitimacy of the jus ad bellum?

International law’s capacity to influence state behaviour by regulating recourse to violence has been a longstanding source of debate among international lawyers and political scientists. On the one hand, sceptics assert that frequent violations of the prohibition on the use of force have rendered article 2(4) of the UN Charter redundant. They contend that national self-interest, rather than international law, is the key determinant of state behaviour regarding the use of force. On the other hand, defenders of article 2(4) argue first, that most states comply with the Charter framework, and second, that state rhetoric continues to acknowledge the existence of the jus ad bellum. In particular, the fact that violators go to considerable lengths to offer legal or factual justifications for their conduct – typically by relying on the right of self-defence – is advanced as evidence that the prohibition on the use of force retains legitimacy in the eyes of states. This paper identifies two potentially significant features of state practice since 2006 which may signal a shift in states’ perceptions of the normative authority of article 2(4). The first aspect is the recent failure by several states to offer explicit legal justifications for their use or force, or to report action taken in self-defence to the Security Council in accordance with Article 51. Four incidents linked to the global “war on terror” are examined here: Israeli airstrikes in Syria in 2007 and in Sudan in 2009, Turkey’s 2006-2008 incursions into northern Iraq, and Ethiopia’s 2006 intervention in Somalia. The second, more troubling feature is the international community’s apparent lack of concern over the legality of these incidents. Each use of force is difficult to reconcile with the strict requirements of the jus ad bellum; yet none attracted genuine legal scrutiny or debate among other states. While it is too early to conclude that these relatively minor incidents presage long term shifts in state practice, viewed together the two developments identified here suggest a possible downgrading of the role of international law in discussions over the use of force, at least in conflicts linked to the “war on terror”. This, in turn, may represent a declining perception of the normative authority of the jus ad bellum, and a concomitant admission of the limits of international law in regulating violence.

The right to be green: using human rights law to achieve environmental protection

The relationship between the environment and human rights has long been recognised. It is now largely accepted that a ‘good’ environment is a necessary precondition for the enjoyment of a wide range of human rights, including the right to health, the right to an adequate standard of living, and even the right to life. It has even been suggested that as humans we all possess a right to live in an environment of a certain standard, based on the intrinsic value of the natural world to all human beings. In this context much has been written regarding the important role that the environment plays in human lives. This paper looks at the flip-side of this discussion, and examines what human rights can do for the environment. It is argued that, while there are valid criticisms for linking environmental protection too strongly to human needs, there is nonetheless much to be gained from using human rights law as a framework to achieve environmental protection.

Human rights and environmental wrongs : achieving environmental justice through human rights law

The links between the environment and human rights are well established internationally. It is accepted that environmental problems impact on individuals’ and communities’ enjoyment of rights which are guaranteed to them under international human rights law. Environmental issues also impact on governments’ capacity to protect and fulfil the rights of their citizens. In addition to these links between the environment and human rights, it is argued that human rights principles offer a strategy for addressing environmental injustice. The justice implications of environmental problems are well documented, with many examples where pollution, deforestation or other degradation disproportionately impacts upon poorer neighbourhoods or areas populated by minority groups. On the international level, there are environmental injustices which exist between developed and developing states. Further, there are also potential injustices for future generations. This paper investigates the role of human rights principles in addressing these instances of environmental injustice, and argues that the framework of human rights norms provides an approach to environmental governance which can help to minimise injustice and promote the interests of those groups who are most adversely affected. Further, it suggests that the human rights enforcement mechanisms which exist at international law could be utilised to lend more weight to claims for more equitable environmental policies.

Defences in medical negligence : to what extent has tort law reform in Australia limited the liability of health professionals?

Tort law reform has resulted in legislation being passed by all Australian jurisdictions in the past decade implementing the recommendations contained in the Ipp Report. The report was in response to a perceived crisis in medical indemnity insurance. The objective was to restrict and limit liability in negligence actions. This paper will consider to what extent the reforms have impacted on the liability of health professionals in medical negligence actions. The reversal of the onus of proof through the obvious risk sections has attempted to extend the scope of the defence of voluntary assumption of risk. There is no liability for the materialisation of an inherent risk. Presumptions and mandatory reductions for contributory negligence have attempted to reduce the liability of defendants. It is now possible for reductions of 100% for contributory negligence. Apologies can be made with no admission of legal liability to encourage them being made and thereby reduce the number of actions being commenced. The peer acceptance defence has been introduced and enacted by legislation. There is protection for good samaritans even though the Ipp Report recommended against such protection. Limitation periods have been amended. Provisions relating to mental harm have been introduced re-instating the requirement of normal fortitude and direct perception. After an analysis of the legislation, it will be argued in this paper that while there has been some limitation and restriction, courts have generally interpreted the civil liability reforms in compliance with the common law. It has been the impact of statutory limits on the assessment of damages which has limited the liability of health professionals in medical negligence actions.

Expansion of support for first year law students : an overview from a first year coordinator

In the context of government funding and targets for increased participation in higher education and equity groups, as well as attrition rates, the literature on first year higher education highlights the importance of appropriate levels of support for students transitioning to higher education. In the law school context, support of first year students is also important in the response to the high levels of stress among law students. It is therefore necessary for universities to provide a variety of support to first year students from both a student perspective and a curriculum perspective. This paper explores the process of investigating the expansion of student support, including peer support programs, staff led programs, appointing a first year coordinator and developing a curriculum plan. These programs promote engagement and ensure a cohesive and integrated first year experience from both curriculum design and student experience perspectives. This paper will explain the process undertaken at QUT of expanding support for first year law students, overview the program details and will reflect on the feedback from students, peer facilitators and staff of expanding support for first year law students at QUT. The paper will conclude with recommendations for improvement to the program.

Providing a law degree for the 'real world' : perspective of an Australian law school

This paper focuses on the ‘real world’ approach to the degree achieved through the first year program, embedding and scaffolding law graduate capabilities through authentic and valid assessment and work integrated learning to assist graduates with transition into the workplace.

Insurance and the law of negligence : an influential or irrelevant persuader?

This article examines, from both within and outside the context of compulsory third party motor vehicle insurance, the different academic and judicial perspectives regarding the relevance of insurance to the imposition of negligence liability via the formulation of legal principle. In particular, the utility of insurance in setting the standard of care held owing by a learner driver to an instructor in Imbree v McNeilly is analysed and the implications of this High Court decision, in light of current jurisprudential argument and for other principles of negligence liability, namely claimant vulnerability, are considered. It concludes that ultimately one’s stance as to the relevance, or otherwise, of insurance to the development of the common law of negligence will be predominately influenced by normative views of torts’ function as an instrument of corrective or distributive justice.

The role of property law in environmental management

Market-based environmental regulation is becoming increasingly common within international and national frameworks. In order for market-based regimes to attract sufficient levels of stakeholder engagement, participants within such schemes require an incentive to participate and furthermore need to feel a sense of security about investing in such processes. A sense of security is associated with property-based interests. This article explores the property-related issues connected with the operation of environmental markets. Relevant property-related considerations include examining the significant role that market-based regulation is playing in connection with the environment; examining the links between property rights and markets; exploring the legal definition of property; analysing the rights and powers associated with environmental interests in land; advancing theory on the need for landholder responsibilities in relation to land and examining the legal mechanisms used to recognise environmental property rights, including the registration thereof.

Palliative care, double effect and the law in Australia

Care and decision-making at the end of life that promotes comfort and dignity is widely endorsed by public policy and the law. In ethical analysis of palliative care interventions that are argued potentially to hasten death, these may be deemed to be ethically permissible by the application of the doctrine of double effect, if the doctor’s intention is to relieve pain and not cause death. In part because of the significance of ethics in the development of law in the medical sphere, this doctrine is also likely to be recognized as part of Australia’s common law, although hitherto there have been no cases concerning palliative care brought before a court in Australia to test this. Three Australian States have, nonetheless, created legislative defences that are different from the common law with the intent of clarifying the law, promoting palliative care, and distinguishing it from euthanasia. However, these defences have the potential to provide less protection for doctors administering palliative care. In addition to requiring a doctor to have an appropriate intent, the defences insist on adherence to particular medical practice standards and perhaps require patient consent. Doctors providing end-of-life care in these States need to be aware of these legislative changes. Acting in accordance with the common law doctrine of double effect may not provide legal protection. Similar changes are likely to occur in other States and Territories as there is a trend towards enacting legislative defences that deal with the provision of palliative care.

Elections 2.0 : reflections on the 2010 federal election and the future of Australian electoral law

This article analyses the 2010 federal election and the impact the internet and social media had on electoral law, and what this may mean for electoral law in the future. Four electoral law issues arising out of the 2010 election as a result of the internet are considered, including online enrolment, regulation of online advertising and comment, fundraising and the role of lobby groups, especially when it comes to crowdsourcing court challenges. Finally, the article offers some suggestions as to how the parliament and the courts should respond to these challenges.