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.

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.

Fusing curricula : science, technology and ICT

Curriculum demands continue to increase on school education systems with teachers at the forefront of implementing syllabus requirements. Education is reported frequently as a solution to most societal problems and, as a result of the world’s information explosion, teachers are expected to cover more and more within teaching programs. How can teachers combine subjects in order to capitalise on the competing educational agendas within school timeframes? Fusing curricula requires the bonding of standards from two or more syllabuses. Both technology and ICT complement the learning of science. This study analyses selected examples of preservice teachers’ overviews for fusing science, technology and ICT. These program overviews focused on primary students and the achievement of two standards (one from science and one from either technology or ICT). These primary preservice teachers’ fused-curricula overviews included scientific concepts and related technology and/or ICT skills and knowledge. Findings indicated a range of innovative curriculum plans for teaching primary science through technology and ICT, demonstrating that these subjects can form cohesive links towards achieving the respective learning standards. Teachers can work more astutely by fusing curricula; however further professional development may be required to advance thinking about these processes. Bonding subjects through their learning standards can extend beyond previous integration or thematic work where standards may not have been assessed. Education systems need to articulate through syllabus documents how effective fusing of curricula can be achieved. It appears that education is a key avenue for addressing societal needs, problems and issues. Education is promoted as a universal solution, which has resulted in curriculum overload (Dare, Durand, Moeller, & Washington, 1997; Vinson, 2001). Societal and curriculum demands have placed added pressure on teachers with many extenuating education issues increasing teachers’ workloads (Mobilise for Public Education, 2002). For example, as Australia has weather conducive for outdoor activities, social problems and issues arise that are reported through the media calling for action; consequently schools have been involved in swimming programs, road and bicycle safety programs, and a wide range of activities that had been considered a parental responsibility in the past. Teachers are expected to plan, implement and assess these extra-curricula activities within their already overcrowded timetables. At the same stage, key learning areas (KLAs) such as science and technology are mandatory requirements within all Australian education systems. These systems have syllabuses outlining levels of content and the anticipated learning outcomes (also known as standards, essential learnings, and frameworks). Time allocated for teaching science in obviously an issue. In 2001, it was estimated that on average the time spent in teaching science in Australian Primary Schools was almost an hour per week (Goodrum, Hackling, & Rennie, 2001). More recently, a study undertaken in the U.S. reported a similar finding. More than 80% of the teachers in K-5 classrooms spent less than an hour teaching science (Dorph, Goldstein, Lee, et al., 2007). More importantly, 16% did not spend teaching science in their classrooms. Teachers need to learn to work smarter by optimising the use of their in-class time. Integration is proposed as one of the ways to address the issue of curriculum overload (Venville & Dawson, 2005; Vogler, 2003). Even though there may be a lack of definition for integration (Hurley, 2001), curriculum integration aims at covering key concepts in two or more subject areas within the same lesson (Buxton & Whatley, 2002). This implies covering the curriculum in less time than if the subjects were taught separately; therefore teachers should have more time to cover other educational issues. Expectedly, the reality can be decidedly different (e.g., Brophy & Alleman, 1991; Venville & Dawson, 2005). Nevertheless, teachers report that students expand their knowledge and skills as a result of subject integration (James, Lamb, Householder, & Bailey, 2000). There seems to be considerable value for integrating science with other KLAs besides aiming to address teaching workloads. Over two decades ago, Cohen and Staley (1982) claimed that integration can bring a subject into the primary curriculum that may be otherwise left out. Integrating science education aims to develop a more holistic perspective. Indeed, life is not neat components of stand-alone subjects; life integrates subject content in numerous ways, and curriculum integration can assist students to make these real-life connections (Burnett & Wichman, 1997). Science integration can provide the scope for real-life learning and the possibility of targeting students’ learning styles more effectively by providing more than one perspective (Hudson & Hudson, 2001). To illustrate, technology is essential to science education (Blueford & Rosenbloom, 2003; Board of Studies, 1999; Penick, 2002), and constructing technology immediately evokes a social purpose for such construction (Marker, 1992). For example, building a model windmill requires science and technology (Zubrowski, 2002) but has a key focus on sustainability and the social sciences. Science has the potential to be integrated with all KLAs (e.g., Cohen & Staley, 1982; Dobbs, 1995; James et al., 2000). Yet, “integration” appears to be a confusing term. Integration has an educational meaning focused on special education students being assimilated into mainstream classrooms. The word integration was used in the late seventies and generally focused around thematic approaches for teaching. For instance, a science theme about flight only has to have a student drawing a picture of plane to show integration; it did not connect the anticipated outcomes from science and art. The term “fusing curricula” presents a seamless bonding between two subjects; hence standards (or outcomes) need to be linked from both subjects. This also goes beyond just embedding one subject within another. Embedding implies that one subject is dominant, while fusing curricula proposes an equal mix of learning within both subject areas. Primary education in Queensland has eight KLAs, each with its established content and each with a proposed structure for levels of learning. Primary teachers attempt to cover these syllabus requirements across the eight KLAs in less than five hours a day, and between many of the extra-curricula activities occurring throughout a school year (e.g., Easter activities, Education Week, concerts, excursions, performances). In Australia, education systems have developed standards for all KLAs (e.g., Education Queensland, NSW Department of Education and Training, Victorian Education) usually designated by a code. In the late 1990’s (in Queensland), “core learning outcomes” for strands across all KLA’s. For example, LL2.1 for the Queensland Education science syllabus means Life and Living at Level 2 standard number 1. Thus, a teacher’s planning requires the inclusion of standards as indicated by the presiding syllabus. More recently, the core learning outcomes were replaced by “essential learnings”. They specify “what students should be taught and what is important for students to have opportunities to know, understand and be able to do” (Queensland Studies Authority, 2009, para. 1). Fusing science education with other KLAs may facilitate more efficient use of time and resources; however this type of planning needs to combine standards from two syllabuses. To further assist in facilitating sound pedagogical practices, there are models proposed for learning science, technology and other KLAs such as Bloom’s Taxonomy (Bloom, 1956), Productive Pedagogies (Education Queensland, 2004), de Bono’s Six Hats (de Bono, 1985), and Gardner’s Multiple Intelligences (Gardner, 1999) that imply, warrant, or necessitate fused curricula. Bybee’s 5 Es, for example, has five levels of learning (engage, explore, explain, elaborate, and evaluate; Bybee, 1997) can have the potential for fusing science and ICT standards.

Governing depression in law students and the shaping of legal personae

Since a recent Australian study found that university law students experience higher rates of depression than medical students and legal professionals (Kelk et al. 2009), the mental health of law students has increasingly become a target of government. To date, however, there has been no attempt to analyse these practices as an activity of government in advanced liberal societies. This paper addresses this imbalance by providing an initial analytics of the government of depression in law schools. It demonstrates how students are responsibilised to manage the risks and uncertainties of legal education by constructing resilient forms of personal and professional personae. It highlights that, in order to avoid depression, students are encouraged to shape not just their minds and bodies according to psychological and biomedical discourses, but are also to govern their ethical dispositions and become virtuous persons. This paper also argues that these forms of government are tied to advanced liberal forms of rule, as they position the law student as the locus of responsibility for depression, imply that depression is caused by an individual failing, and entrench students within responsibilising and entrepreneurial forms of subjectivity.

Legal responses to climate change

The challenges of climate change pose problems requiring new and innovative legal responses by legal practitioners, government officials and corporate officers. This book addresses a broad range of topic areas where climate change has impact and systematically analyses the key legal responses to climate change, both at the international level and within Australia at federal, State and local levels. In particular, it critically examines: •the rights, duties and market mechanisms established under the international climate change regime •the effect of climate change policies on the implementation of environmental and planning laws •new regimes for the implementation of renewable energy and energy efficiency initiatives •legal frameworks for the implementation of biological and geological sequestration projects (including forest projects and carbon rights); and •legal principles for the design of an effective carbon trading scheme for Australia It also considers the role of the common law including: •the likely response of the law of torts to emerging forms of climate change harm; and •potential liabilities for professionals who must take climate change into account in their decision-making and advice

The Australian response to climate change : business as usual or legal innovation?

Through international agreement to the United Nations Framework Convention on Climate Change and the Kyoto Protocol the global community has acknowledged that climate change is a global problem and sought to achieve reductions in global emissions, within a sufficient timeframe, to avoid dangerous anthropogenic interference with the climate system. The sheer magnitude of emissions reductions required within such an urgent timeframe presents a challenge to conventional regulatory approaches both internationally and within Australia. The phenomenon of climate change is temporally and geographically challenging and it is scientifically complex and uncertain. The purpose of this paper is to analyse the current Australian legal response to climate change and to examine the legal measures which have been proposed to promote carbon trading, energy efficiency, renewable energy, and carbon sequestration initiatives across Australia. As this paper illustrates, the current Australian approach is clearly ineffective and the law as it stands overwhelmingly inadequate to address Australia’s emissions and meet the enormity of the challenges posed by climate change. Consequently, the government should look towards a more effective legal framework to achieve rapid and urgent transformations in the selection of energy sources, energy use and sequestration initiatives across the Australian community.

Engineering curricula in the 21st century : the global scenario and challenges for India

In the 21st century's global economy, the new challenges facing the engineering profession have arrived, confirming the need to restructure engineering curricula, teaching and learning practices, and processes, including assessment. Possessing merely technical knowledge no longer guarantees an engineering graduate a successful career. And while all countries are facing this dilemma, India is struggling the most. It has been argued that most Indian engineering educational institutions struggle with the systemic problem of centralisation coupled with an archaic examination system that is detrimental to student learning. This article examines some internationally renowned educational institutions that are embracing the growing importance of non-technical subjects and soft skills in 21st century engineering curricula. It will then examine the problems that India faces in doing the same.

Cyberbullying in social networking sites and blogs : legal issues for young people and schools

This article examines the social networking phenomenon that has been so readily embraced by school-age adolescents, in the context of its potential to contribute further to the mechanisms for and incidence of cyberbullying amongst school students. Cyberbullying in these online for a, as a misuse of technology to harass, intimidate, tease, threaten, abuse or otherwise terrorise peers, teachers and/or the school in general, is discussed from both the psychological perspective and in terms of its legal ramifications (both criminal and civil) in Australia. Some recommendations for proactive and preventative measures, education and policy adoptions are provided, together with general advice to parents, schools and adolescents on awareness of the risks involved and how young people might better protect themselves in light of that knowledge.

Engineering curricula in the 21st century : the global scenario and challenges for India

In the 21st century's global economy, the new challenges facing the engineering profession have arrived, confirming the need to restructure engineering curricula, teaching and learning practices, and processes, including assessment. Possessing merely technical knowledge no longer guarantees an engineering graduate a successful career. And while all countries are facing this dilemma, India is struggling the most. It has been argued that most Indian engineering educational institutions struggle with the systemic problem of centralisation coupled with an archaic examination system that is detrimental to student learning. This article examines some internationally renowned educational institutions that are embracing the growingimportance of non-technical subjects and soft skills in 21st century engineering curricula. It will then examine the problems that India faces in doing the same.

Retracing the Roots and Ideals of Confucian Principles of Governance: the Art of Regulating Governance without Legal Rules in Chinese Societies

Confucius was and still is one of the most eminent Chinese philosophers. Such is the importance of Confucius’s teachings; it had influenced all aspects of social life in Chinese societies. In the post-Enron, post-Worldcom, and post-Global Financial Crisis era there are raising doubts in the mantra of the so-called conventional wisdom about law and economic order. Whilst many recent publications offered solutions to those problems like advocating for more laws, rules or reforms in regulatory institutions to enhance the regulation of corporate governance. What Confucius advocated was a non-legal, social mode of regulation based on moral ideals that should be embedded into the minds of every person. Whilst this is an ancient concept from primitive societies, its relevance and merits could be seen in modern Chinese societies like Hong Kong. In essence, Confucian principles of governance build on relational and paternalistic order based on moral ideals.

Cyberbullying : legal implications for schools

Most educators are now aware that cyberbullying is bullying through the use of technology. This new form of bullying makes use of the diverse range of technology now available including email, texting, chat rooms, mobile phones, mobile phone cameras, i-pods and websites. Cyberbullying shares many of the same attributes as face-to-face bullying such as a power imbalance which causes a sense of helplessness on the part of the victim, repetition and the intent to hurt.

The Australian Nonprofit Sector Legal Almanac 2010, ACPNS Working Paper 53

This is the third year that we have summarised annual developments in the law for nonprofit staff, boards and volunteers. We were encouraged by the interest shown in last year’s publication and the use made of the digital copy on our web site, so here is the almanac for the Jan 2010–Dec 2010 period. We are delighted that the Australian Charity Law Association and PilchConnect (Victoria) have again agreed to contribute and promote the publication as well. These two organisations are beginning to fill the void of professional legal development and assistance to small nonprofit organisations that has characterised Australia for too many years. The first conference of the Australian Charity Law Association in Sydney was a significant event and one of the addresses is included in the Almanac. Other materials from the conference can be accessed at the Centre’s website.

Towards low emissions in the electricity generation sector : creating a coherent legal model for Australia

Australia’s efforts to transition to a low-emissions economy have stagnated following the successive defeats of the Carbon Pollution Reduction Scheme. This failure should not, however, be regarded as the end of Australia’s efforts to make this transition. In fact, the opportunity now exists for Australia to refine its existing arrangements to enable this transition to occur more effectively. The starting point for this analysis is the legal arrangements applying to the electricity generation sector, which is the largest sectoral emitter of anthropogenic greenhouse gas emissions in Australia. Without an effective strategy to mitigate this sector’s contribution to anthropogenic climate change, it is unlikely that Australia will be able to transition towards a low-emissions economy. It is on this basis that this article assesses the dominant national legal arrangement – the Renewable Energy Target – underpinning the electricity generation sector's efforts to become a low-emissions sector.