Book review : "Community engagement in contemporary legal education : Pro Bono, Clinical legal education and services learning"

The result of a forum on community engagement held in November 2008 at Bond University, Community Engagement in Contemporary Legal Education is a compilation of papers presented at the forum by academics and professionals throughout Australia. Although found initially to be a topic of legal interest, it was not until the reviewer came across the Council of Australian Law Deans (CALD) “Standards for Australian Law Schools” (adopted 17 November 20093) then the full importance and potential of this book was revealed. Clause 2.2.4 of the CALD Standards recognises the importance of “experiential learning opportunities” for law students and cites examples such as clinical programs, internships, practical experience and pro-bono work. Clause 2.3.3 acknowledges the need to develop professional ethics and again cites pro-bono obligations as an example. Clause 9.6.2 encourages interaction of law schools with the profession and the community and again, pro-bono community service is identified as one method of doing so. Yet nowhere in the document are there any uniform standards or binding obligations that law schools must commit to. In the current climate where the importance of practical experience is continually emphasised and student numbers exceed the number of available paid legal positions, there should be more focus on the details of how these commitments should be converted to be included in a law school’s curriculum.

Everyday life and the edges of existence : wrongs with no name or the wrong name?

Actions for wrongful life, as they have come unfortunately to be styled, encompass various types of claim. These include claims for alleged negligence after conception, those based on negligent advice or diagnosis prior to conception concerning possible effects of treatment given to the child's mother, contraception or sterilisation, or genetic disability. This distinguishes such claims from those for so called wrongful birth, which are claims by parents for the cost of raising either a healthy or a disabled child where the unplanned birth imposes costs on the parents as a result of clinical negligence. Two of the more controversial cases to have reached the High Court of Australia which are if interest to us here in the past decade are Cattanach v Melchior where the court, by a narrow majority (McHugh, Gummow, Kirby and Callinan JJ; Gleeson CJ, Hayne and Heydon dissenting) acknowledged recovery for wrongful birth. In the second joined appeals of Harriton v Stephens and Waller v James; Waller v Hoolahan the court overwhelmingly precluded a ‘wrongful life’ claim (Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ; Kirby J dissenting). Both cases raised issues around the sanctity and value of life and the nature of harm and the assessment of damages, and this brief note affords us the opportunity to consider the way in which the ‘life as legal loss’ arguments were treated by the various judges in both cases.

The legal framework of the Australian health system

This chapter is about the role of law in the creation and operation of Australian health systems. Accordingly, this chapter discusses how law regulates the way in which health services in Australia are funded, organised, regulated, managed, operated and governed. (The question of how health professionals are regulated is discussed in Chapter 15.) Although the focus of much of health law is on legal mechanisms for the resolution of disputes or disagreements between the state, health providers, professionals, patients and families and friends, and through dispute resolutions processes setting standards for practice, these are only some of the “jobs” that health law performs. In health systems where the state undertakes a significant role in regulating, funding, managing and providing health services, health law also performs an important constitutive function. Health law declares the values upon which the health system is based, shapes social processes to achieve public ends and provides a structure for the complex interactions that occur within a modern health system. Health law regulates decision-makers in health systems by establishing who has the power to participate in decisions and in what circumstances, establishing processes through which decisions are made and creating mechanisms for decision-makers to be held publicly accountable. It is this broader constitutive function of health law that is a primary focus of much of this chapter — how and why governments use their legislative powers to structure and shape the health system.

The constitutional power to make war: domestic legal issues raised by Australia's action in Iraq

The legal power to declare war has traditionally been a part of a prerogative to be exercised solely on advice that passed from the King to the Governor-General no later than 1942. In 2003, the Governor- General was not involved in the decision by the Prime Minister and Cabinet to commit Australian troops to the invasion of Iraq. The authors explore the alternative legal means by which Australia can go to war - means the government in fact used in 2003 - and the constitutional basis of those means. While the prerogative power can be regulated and/or devolved by legislation, and just possibly by practice, there does not seem to be a sound legal basis to assert that the power has been devolved to any other person. It appears that in 2003 the Defence Minister used his legal powers under the Defence Act 1903 (Cth) (as amended in 1975) to give instructions to the service head(s). A powerful argument could be made that the relevant sections of the Defence Act were not intended to be used for the decision to go to war, and that such instructions are for peacetime or in bello decisions. If so, the power to make war remains within the prerogative to be exercised on advice. Interviews with the then Governor-General indicate that Prime Minister Howard had planned to take the matter to the Federal Executive Council 'for noting', but did not do so after the Governor-General sought the views of the then Attorney-General about relevant issues of international law. The exchange raises many issues, but those of interest concern the kinds of questions the Governor-General could and should ask about proposed international action and whether they in any way mirror the assurances that are uncontroversially required for domestic action. In 2003, the Governor-General's scrutiny was the only independent scrutiny available because the legality of the decision to go to war was not a matter that could be determined in the High Court, and the federal government had taken action in March 2002 that effectively prevented the matter coming before the International Court of Justice

The mandatory notification of data breaches : issues arising for Australian and EU legal developments

Public and private sector organisations are now able to capture and utilise data on a vast scale, thus heightening the importance of adequate measures for protecting unauthorised disclosure of personal information. In this respect, data breach notification has emerged as an issue of increasing importance throughout the world. It has been the subject of law reform in the United States and in other jurisdictions. This article reviews US, Australian and EU legal developments regarding the mandatory notification of data breaches. The authors highlight areas of concern based on the extant US experience that require further consideration in Australia and in the EU.

Finding a way through the ethical and legal maze : withdrawing medical treatment and euthanasia

This article examines Finnis' and Keown's claim that the intention/foresight distinction should be used as the basis for the lawfulness of withholding and withdrawing medical treatment, rather than the act/omission distinction which is currently used. I argue that whilst the intention/foresight distinction is sound and can apply to palliative pain relief hastening death, it cannot be applied to withholding and withdrawing medical treatment. Instead, the act/omission distinction remains the better basis for the lawfulness of withholding and withdrawal, and law reform is consequently unnecessary.

Young children’s active citizenship : storytelling, stories, and social actions

This thesis inquires into possibilities for young children‘s active citizenship as provoked through a practice of social justice storytelling with one Preparatory1 class of children aged five to six years. The inquiry was practitioner-research, through a living educational theory approach cultivating an interrelational view of existing with others in evolving processes of creation. Ideas of young children‘s active citizenship were provoked and explored through storytelling, by a storytelling teacher-researcher, a Prep class of children and their teacher. The three major foci of the study were practice, narrative and action. A series of storytelling workshops with a Prep class was the practice that was investigated. Each workshop began with a story that made issues of social justice visible, followed by critical discussion of the story, and small group activities to further explore the story. The focus on narrative was based on the idea of story as a way knowing. Stories were used to explore social justice issues with young children. Metanarratives of children and citizenship were seen to influence possibilities for young children‘s active citizenship. Stories were purposefully shared to provoke and promote young children‘s active citizenship through social actions. It was these actions that were the third focus of the study. Through action research, a social justice storytelling practice and the children‘s responses to the stories were reflected on both in action and after. These reflections informed and shaped storytelling practice. Learning in a practice of social justice storytelling is explained through living theories of social justice storytelling as pedagogy. Data of the children‘s participation in the study were analysed to identify influences and possibilities for young children‘s active citizenship creating a living theory of possibilities for young children‘s active citizenship.

Governmentality and the reflection of legal educators : assessment practices as a case study

This paper presents a conceptual framework, informed by Foucault’s work on governmentality, which allows for new kinds of reflection on the practice of legal education. Put simply, this framework suggests that legal education can be understood as a form of government that relies on a specific rationalisation and programming of the activities of legal educators, students, and administrators, and is implemented by harnessing specific techniques and bodies of ‘know-how’. Applying this framework to assessment at three Australian law schools, this paper highlights how assessment practices are rationalised, programmed, and implemented, and points out how this government shapes students’ legal personae. In particular, this analysis focuses on the governmental effects of pedagogical discourses that are dominant within the design and scholarship of legal education. It demonstrates that the development of pedagogically-sound regimes of assessment has contributed to a reformulation of the terrain of government, by providing the conditions under which forms of legal personae may be more effectively shaped, and extending the power relations that achieve this. This analysis provides legal educators with an original way of reflecting on the power effects of teaching the law, and new opportunities for thinking about what is possible in legal education.

12 fingers or one, it’s how you play? Genetic discrimination in the Australian workforce

For quite some time, debate has raged about what the human race can and should do with its knowledge of genetics. We are now nearly 60 years removed from the work of Watson and Crick who determined the structure of deoxyribonucleic acid (DNA), yet our opinions as how best to employ scientific knowledge of the human genome, remain as diverse and polarised as ever. Human judgment is often shaped and coloured by popular media and culture, so it should come as no surprise that box office movies such as Gattaca (1997) continue to play a role in informing public opinion on genetics. In order to perform well at the box office, movies such as Gattaca take great liberty in sensationalising (and even distorting) the implications that may result from genetic screening and testing. If the public’s opinion on human genetics is strongly derived from the box office and popular media, then it is no wonder that the discourse on human genetics is couched in the polar parlances of future utopias or future dystopias. When legislating in an area like genetic discrimination in the workforce, we must be mindful of not overplaying the causal link between genetic predisposition towards a disability and an employee’s ability to perform the inherent requirements of their job. Genetic information is ultimately about people, it is not about genes. Genetic discrimination is ultimately about actions, it is not about the intrinsic value of genetic information.