The New Lawyer

This text is designed to implement the Threshold Learning Outcomes (TLOs) for law in the first year, and to incorporate Sally Kift’s First Year Curriculum principles: http://tls.vu.edu.au/portal/site/trans/Resources/KiftTransitonPedagogySixPrinciples_16Nov09.pdf This is a learning-centered text book intentionally designed for first year students and written by experts in legal education and the first year experience. It is written in a tone and style that engages and communicates effectively with first year law students, without compromising its rigour. It provides students with opportunities to contextualise and make sense of their learning by connecting that learning with what they already know, and with current contemporary issues and affairs. This work is designed to ease students through the transition from a diverse variety of backgrounds (such as high school, work or other disciplines) to the first year of law. It provides practical guidance about adjusting to law school and to university. Students are asked to regularly reflect upon why they are studying law. The book also prepares law students for success in their latter year studies in law by ensuring that they are equipped with the necessary threshold concepts and foundational skills to do well: for example, research skills (particularly, online research skills), reasoning skills, written communication skills, negotiation skills, and self-management skills. A range of practical tips on studying law are provided throughout the book. The work also asks students to engage with developing an emergent sense of professional identity – including what it means to ‘think like a lawyer’. In supporting the students to engage with the concept of professional identity, the work begins a process of preparing students for transition from law school to legal practice. This is achieved by providing explanations of how the material being presented relates to the practice of law, as well as practical information relating to employability skills as a new graduate. This work has a number of learning and teaching objectives to enhance the quality of student learning in their first year of law by engaging, motivating and supporting that learning. First, the work is designed to engage first year students with their legal education and with a future sense of professional identity. It does this through its: • Dynamic writing style • Engaging format • Inclusion of contemporary issues and events • Flowcharts, checklists, mind-maps, tables and timelines • Inclusion of real-world problems and dilemmas. Second, the text motivates student learning by promoting active learning. It does this by: • Demonstrating, and asking students to practice, what they need to do – that is, the work is not simply focussed on telling students what they need to know • Including regular self-directed learning exercises throughout each chapter, such as practical exercises for the development of important foundational legal skills • Including exercises that promote student collaboration, and that require students to apply their learning to practical situations, and • Incorporating a range of interesting active thinking points and research activities. Third, the book supports student learning by encouraging reflective learning and independent learning. It does this by including: • Specific content on how to be a reflective practitioner and an independent learner • Exercises that require students to engage in independent learning, particularly in relation to legal research skill development • Exercises requiring students to reflect upon what they have learned, and encouraging students to keep a reflective learning journal • Exercises requiring students to reflect upon their own views and beliefs • Reflection on whether students have achieved the learning objectives articulated at the beginning of the chapter. The work also: • Demonstrates respect for student experiences, views, opinions and values • Acknowledges student diversity • Recognises the importance of being globally minded law students and lawyers • Supports law teachers in using the work in their classrooms through the provision of comprehensive teaching materials.

Regulating Work

This chapter examines the regulation of ‘work’: principally the circumstances in which labour is engaged and the conditions attaching to the work relationships which are consequently formed and carried on. Fundamentally, this is the subject area labelled ‘labour law’in modern-day legal, academic, and professional discourse. This chapter also explores how some issues in the regulatory literature impact upon this field. One of the central arguments in this chapter is that instrumental regulation in the field of labour law is not a relatively modern phenomenon. Rather, the reading of the historical literature pertaining to labour under earlier economic and social conditions shows that the instrumental regulation of the labour market by the state and its courts has been the dominant form of law in this field for centuries. Readership: academics working on any area of law or in socio-legal research

Taking up the discourse : theory or praxis

This article responds to the invitation extended by Carney to engage in a dialogue on the topic of graduate legal research units. In his paper, Carney stated the approach of the Sydney course as being to teach theory rather than skills, to "pursue academic goals over skill competencies... ". The Faculty of Law at Queensland University of Technology introduced a postgraduate legal research unit in 1993 with different perspectives and purposes to the Sydney course, and given this experience, the opportunity for a discussion on aspects of such units including the theoretical versus practical approach to teaching cannot be ignored.

Narrating the law: Possibilities, pitfalls and prospects

This article explores the possibilities and limits of using narrative analysis as a socio-legal method to illuminate issues of law and justice. It defines narrative analysis, explores the different ways the method has been used in the social sciences, and critically evaluates its use in interdisciplinary research on sexual harassment.

Law as lore

Law is saturated with stories. People tell their stories to lawyers; lawyers tell their clients’ stories to courts; legislators develop regulation to respond to their constituents’ stories of injustice or inequality. In legal education, professors devise hypothetical scenarios to test student understanding of legal doctrine; in law examinations and assignments, students construct advice to fictional clients. The common law legal system derives many of its foundational principles from case law — in effect, stories with legal solutions — that have accumulated over time. The civil law system, despite a different design centred on legal codes, also relies on judicial story-telling to interpret the code provisions and flesh out the gaps.

Pioneering use of narrative method in a first-year law course to provide an authentic, inquiry-based entry into the discipline of law

Law is saturated with stories. People tell their stories to lawyers; lawyers tell their client's stories to courts; and legislators develop regulation to respond to their constituent's stories of injustice or inequality. My approach to first-year legal education respects this narrative tradition. Both my curriculum design and assessment scheme in the compulsory first-year subject Australian Legal System deploy narrative methodology as the central teaching and learning device. Throughout the course, students work on resolving the problems of four hypothetical clients. Like a murder mystery, pieces of the puzzle come together as students learn more about legal institutions and the texts they produce, the process of legal research, the analysis and interpretation of primary legal sources, the steps in legal problem-solving, the genre conventions of legal writing style, the practical skills and ethical dimensions of professional practice, and critical inquiry into the normative underpinnings and impacts of the law. The assessment scheme mirrors this design. In their portfolio-based assignment, for example, students devise their own client profile, research the client's legal position and prepare a memorandum of advice.

Spontaneous and episodic volunteers: The legislative, insurance and risk management framework

Baby Boomers are a generation of life long association joiners, but following generations prefer spontaneous and episodic volunteering. This trend is apparent not only during natural disasters, but in most other spheres of volunteering. Legal liability for such volunteers is a growing concern, which unresolved, may dampen civic participation. We critically examine the current treatment of these liabilities through legislation, insurance and risk management.

The doctrinal method: Incorporating interdisciplinary methods in reforming the law

The doctrinal methodology is in a period of change and transition. Realising that the scope of the doctrinal method is too constricting, academic lawyers are becoming eclectic in their use of research method. In this transitional time, legal scholars are increasingly infusing evidence (and methods) from other disciplines into their reasoning to bolster their reform recommendations. This article considers three examples of the interplay of the discipline of law with other disciplines in the pursuit of law reform. Firstly the article reviews studies on the extent of methodologies and reformist frameworks in PhD research in Australia. Secondly it analyses a ‘snapshot’ of recently published Australian journal articles on criminal law reform. Thirdly, it focuses on the law reform commissions, those independent government committees that play such an important role in law reform in common law jurisdictions. This examination demonstrates that while the doctrinal core of legal scholarship remains intact, legal scholars are endeavouring to accommodate statistics, comparative perspectives, social science evidence and methods, and theoretical analysis, within the legal research framework, in order to provide additional ballast to the recommendations for reform.

Statutory licences and third party dealings: Property analysis v statutory interpretation

Statutory licensing schemes are proliferating as a means of regulating commercial activity, resource exploitation and activities harmful to the environment. Statutes often declare that entitlements are non-transferable or are transferable only with approval or subject to conditions. Some entitlements, such as resource consents issued under the Resource Management Act 1991 (NZ), are declared not to be property. Despite these statutory declarations, entitlements are often held to be transferable in equity or to be property for the purposes of resolving private disputes. Recently, in Greenshell New Zealand Ltd v Tikapa Moana Enterprises Ltd, the High Court of New Zealand indicated that a resource consent was property that could support a claim for relief against forfeiture, continuing the trend in earlier cases that appear to depart from the statute. In this article we examine the juridical treatment of entitlements in private law. We identify factors influencing the courts’ enforcement of private arrangements which may circumvent the statutory intent. Our analysis will guide legislators in the design of provisions to implement new schemes.

Understanding the legal implications of data sharing, access and reuse in the Australian research landscape

Researchers are increasingly involved in data-intensive research projects that cut across geographic and disciplinary borders. Quality research now often involves virtual communities of researchers participating in large-scale web-based collaborations, opening their earlystage research to the research community in order to encourage broader participation and accelerate discoveries. The result of such large-scale collaborations has been the production of ever-increasing amounts of data. In short, we are in the midst of a data deluge. Accompanying these developments has been a growing recognition that if the benefits of enhanced access to research are to be realised, it will be necessary to develop the systems and services that enable data to be managed and secured. It has also become apparent that to achieve seamless access to data it is necessary not only to adopt appropriate technical standards, practices and architecture, but also to develop legal frameworks that facilitate access to and use of research data. This chapter provides an overview of the current research landscape in Australia as it relates to the collection, management and sharing of research data. The chapter then explains the Australian legal regimes relevant to data, including copyright, patent, privacy, confidentiality and contract law. Finally, this chapter proposes the infrastructure elements that are required for the proper management of legal interests, ownership rights and rights to access and use data collected or generated by research projects.

Enabling access to and re-use of publicly funded research data as Open Educational Resources : a strategy for overcoming the legal barriers to data access and re-use

Open Educational Resources (OER) are teaching, learning and research materials that have been released under an open licence that permits online access and re-use by others. The 2012 Paris OER Declaration encourages the open licensing of educational materials produced with public funds. Digital data and data sets produced as a result of scientific and non-scientific research are an increasingly important category of educational materials. This paper discusses the legal challenges presented when publicly funded research data is made available as OER, arising from intellectual property rights, confidentiality and information privacy laws, and the lack of a legal duty to ensure data quality. If these legal challenges are not understood, addressed and effectively managed, they may impede and restrict access to and re-use of research data. This paper identifies some of the legal challenges that need to be addressed and describes 10 proposed best practices which are recommended for adoption to so that publicly funded research data can be made available for access and re-use as OER.

Enabling open access to and re-use of publicly funded research data in Malaysian public universities : a legal and policy analysis

Numerous statements and declarations have been made over recent decades in support of open access to research data. The growing recognition of the importance of open access to research data has been accompanied by calls on public research funding agencies and universities to facilitate better access to publicly funded research data so that it can be re-used and redistributed as public goods. International and inter-governmental bodies such as the ICSU/CODATA, the OECD and the European Union are strong supporters of open access to and re-use of publicly funded research data. This thesis focuses on the research data created by university researchers in Malaysian public universities whose research activities are funded by the Federal Government of Malaysia. Malaysia, like many countries, has not yet formulated a policy on open access to and re-use of publicly funded research data. Therefore, the aim of this thesis is to develop a policy to support the objective of enabling open access to and re-use of publicly funded research data in Malaysian public universities. Policy development is very important if the objective of enabling open access to and re-use of publicly funded research data is to be successfully achieved. In developing the policy, this thesis identifies a myriad of legal impediments arising from intellectual property rights, confidentiality, privacy and national security laws, novelty requirements in patent law and lack of a legal duty to ensure data quality. Legal impediments such as these have the effect of restricting, obstructing, hindering or slowing down the objective of enabling open access to and re-use of publicly funded research data. A key focus in the formulation of the policy was the need to resolve the various legal impediments that have been identified. This thesis analyses the existing policies and guidelines of Malaysian public universities to ascertain to what extent the legal impediments have been resolved. An international perspective is adopted by making a comparative analysis of the policies of public research funding agencies and universities in the United Kingdom, the United States and Australia to understand how they have dealt with the identified legal impediments. These countries have led the way in introducing policies which support open access to and re-use of publicly funded research data. As well as proposing a policy supporting open access to and re-use of publicly funded research data in Malaysian public universities, this thesis provides procedures for the implementation of the policy and guidelines for addressing the legal impediments to open access and re-use.

Creating a legal framework for copyright management of open access within the Australian academic and research sector

This chapter analyses the copyright law framework needed to ensure open access to outputs of the Australian academic and research sector such as journal articles and theses. It overviews the new knowledge landscape, the principles of copyright law, the concept of open access to knowledge, the recently developed open content models of copyright licensing and the challenges faced in providing greater access to knowledge and research outputs.

Security and legal issues in E-tendering

The Queensland Department of Public Works (QDPW) and the Queensland Department of Main Roads (QDMR) have identified a need for industry e-contracting guidelines in the short to medium term. Each of these organisations conducts tenders and contracts for over $600 million annually. This report considers the security and legal issues relating to the shift from a paper-based tendering system to an electronic tendering system. The research objectives derived from the industry partners include: • a review of current standards and e-tendering systems; • a summary of legal requirements impacting upon e-tendering; • an analysis of the threats and requirements for any e-tendering system; • the identification of outstanding issues; • an evaluation of possible e-tendering architectures; • recommendations for e-tendering systems.