Foucault Goes to Law School : Using Foucault to Examine Australian Legal Education

This paper will consider the way that Foucault’s work has been utilised to examine Australian legal education, particularly in the context of understanding the construction of the legal identity. While remaining sensitive to the many potential ‘uses’ of Foucault’s tools, as well as his problematisation of the author as an organising feature of discourse, this paper will argue that legal education scholarship overwhelmingly utilises concepts such as ‘discourse’ and ‘power-knowledge’, which, while useful, cannot provide a nuanced understanding of the construction of the legal identity. Consequently, this paper suggests that future legal education research utilise Foucault’s concepts of ‘ethics’ and ‘governmentality’ to address these issues.

'Homophobia' in the university classroom : law and justice students' conceptualizations of queer identity

Heteronormative discourses provide the most common lens through which sexuality is understood within university curricula. This means that sexuality is discussed in terms of categories of identity, with heterosexuality accorded primacy and all ‘others’ indeed ‘othered.’ This paper reports on research carried out by the authors in a core first year university justice class, in which students of law and/or justice were required to engage with, discuss, and reflect on discourses on sexuality. It uses a poststructural framework to identify how students understand non-heterosexualities and how they personally relate to queer identities, in the sense that it asks questions about gender and sexual identity, and the discourses surrounding them. It was found that strongly negative attitudes to non-heterosexualities are quite resistant to challenge, and that some students express being confronted with queerness as a deep-seated fear of being drawn into otherness against their will. The result was that, while many students were able to unpack their attitudes towards queerness and engage in critical reflection and re-evaluation of their attitudes, students with strongly negative views towards non-heterosexualities conversely refused to engage at all, typically perceiving even the engagement itself as a threat to their core heterosexual identity. However, the authors caution against relying on the idea that students are simply “homophobic” to explain this reluctance, as this term does not necessarily account for the complexity of the discourses that inform students’ reactions in this context. This “homophobia” may simply be related to a way of performing gender and sexual identity as opposed to overt discrimination and fear.

Assessing reflection skills in law using criterion-referenced assessment

This paper focuses on the assessment of reflective practice, an issue that has not been fully explored within legal education literature. While the issue of how reflective practice should be taught is one that requires careful consideration, it is beyond the scope of this paper to consider both the teaching and the assessment of reflective practice. Part II of this paper conceptualises reflective practice, and Part III explores the benefits of reflective practice in legal education and the use of reflective writing to assess experiential learning in a legal context. Part IV considers the diverse issues that arise in assessing reflective practice and whether there is an objective method for assessing reflection. Part V of the paper examines the assessment of reflective practice in the context of an exemplar undergraduate law subject that uses a reflective report to assess students’ experiential learning during a court visit.14 Finally, Part VI offers a rubric to facilitate criterion-referenced assessment of reflective practice and thereby provides a framework for assessing reflection skills. It is suggested that the rubric is transferable not only to other law subjects but also to subjects in other disciplines.

Where the bloody hell does parody fit in Australian copyright law?

This article examines the role of the recently introduced fair dealing exception for the purposes of parody and satire in Australian copyright law. Parody and satire, while central to Australian expression, pose a substantial challenge for copyright policy. The law is asked to strike a delicate balance between an author’s right to exploit their work, the interests of the public in stimulating free speech and critical discussion, the rights of artists who rely on existing material in creating their own expression, and the rights of all artists in their reputation and the integrity of their works. This article highlights the difficulty parodists and satirists have historically faced in Australia and examines the potential of the new fair dealing exceptions to relieve this difficulty. This article concludes that the new exceptions have the potential, if read broadly, not only to bridge the gap between humorous and non-humorous criticism, but also to allow for the use of copyright material to critique figures other than the copyright owner or author, extending to society generally. This article will argue that the new exceptions should be read broadly to further this important policy goal while also being limited in their application so as to prevent mere substitutable uses of copyright material. To achieve these twin goals, I suggest that the primary indication of fairness of an unlicensed parody should be whether or not it adds significant new expression so as not to be substitutable for the original work.

Charity law reforms : overview of progress since 2001

In the UK, Singapore, Canada, New Zealand and Australia, as in many other jurisdictions, charity law is rooted in the common law and anchored on the Statute of Charitable Uses 1601. The Pemsel classification of charitable purposes was uniformly accepted, and together with a shared and growing pool of judicial precedents, aided by the ‘spirit and intendment’ rule, has subsequently allowed the law to develop along much the same lines. In recent years, all the above jurisdictions have embarked on law reform processes designed to strengthen regulatory processes and to statutorily define and encode common law concepts. The reform outcomes are now to be found in a batch of national charity statutes which reflect interesting differences in the extent to which their respective governments have been prepared to balance the modernising of charitable purposes and other common law concepts alongside the customary concern to tighten the regulatory framework.

Critical thinking about the uses of research

One of the promises of New Labour was that government policy would be grounded in 'evidence based research'. In recent years some academics have come to question whether the government has delivered on this promise. Professors Reece Walters and Tim Hope offer two contributions to this debate, arguing that rather than the 'evidence base', it is political considerations that govern the commissioning, production and dissemination of Home Office research. As the first monograph in our 'Evidence based policy series' Critical thinking about the uses of research carries a thought provoking set of arguments.

The Profits of Charity : International Perspectives on the Law Governing the Involvement of Charities in Commerce

"The Profits of Charity examines the contemporary law governing the involvement of charity in commerce and explores the reasons why this involvement is dramatically changing. From a perspective familiar to charity lawyers, NGO managers, and scholars, Kerry O'Halloran identifies the concepts and the law underpinning charities and their profits by tracing legal developments in the field and identifying the resulting opportunities and challenges for the future. At a time when many leading nations are confronting economic recession, the threat of terrorism, and the retreat of the 'welfare state,' this book explores why governments are turning to charities in their quest to cultivate social capital, consolidate civil society, and promote civic engagement." -- publisher website

Wrong way go back! Rediscovering the path for charity law reform

Problems with charity law jurisprudence persist. The difficulties arose in the 20th century and are fundamental to the way the doctrine is presently theorised. They grew out of the approach taken in Pemsel’s Case to the categorisation of the ‘spirit and intendment’ of the Preamble to the Statute of Charitable Uses. Recent statutory reforms, such as the Charities Act 2006 (Eng&W), have compounded the underlying problems rather than resolving them. This paper aims to stimulate thinking about a new foundation for charity jurisprudence – while the approach may seem radical, the paper argues that these new foundations can be discerned underlying the current jurisprudence. The difficulties can be overcome by rediscovering the underlying jurisprudence which is disregarded in the current approach to categorisation. Giving voice, in contemporary language, to that foundational jurisprudence, this paper provides a way out of the current problems. It also provides an alternative way of conceptualising the doctrine of charitable purpose to guide reform.

Managing intensified urban development and industrial uses in Qld : affected area notations

The Queensland government planning policies actively encourage increased dwelling density, sustainable infill development and transit oriented development to maximise land use and minimise urban sprawl. One of the detriments of such a policy is the potential for intensified residential development to create conflict between lawfully operating existing industrial uses and residences. In particular the government is concerned that intensified urban development will increase the risk of litigation from landowners and tenants detrimentally affected by the emission of aerosols, fumes, light, noise, odour, particles or smoke from existing industrial premises.

Ethics, Law and Health Care : a Guide for Nurses and Midwives

Understanding ethics and law in health care is an essential part of nurses’ and midwives’ professional standards. Ethics, Law and Health Care focuses on teaching applied ethics and law in a manner that illustrates the real world applications of these core components of the nursing and midwifery curriculum and practice. It equips readers with the ability to recognise and address legal and ethical issues that will arise in their professional practice. The book uses the four principles of biomedical ethics (autonomy, non-maleficence, beneficence and justice) together with the use of both the Nursing and Midwifery Codes of Ethics and Codes of Professional Conduct, issued by the Nursing and Midwifery Board of Australia, as a central means through which to analyse and approach ethical and legal issues. Ethics, Law and Health Care is scaffolded to assist readers in understanding legal and ethical principles, to integrate them in the context of a particular issue within professional practice, and provide them with a decision-making framework to take action in a professional context by utilising the Codes as well as state and federal law. Aided by pedagogical features such as case studies, review questions, further reading and a glossary of common terms, this book is an essential resource for students, academics and practitioners.

Thinking about Law: Perspectives on the History, Philosophy and Sociology of Law

A comprehensive introduction to the study of law. It uses historical, sociological, economic and philosophical perspectives to explore the major legal debates in Australia today. The contributors examine: the position of Aborigines in the Australian legal system and the impact of the Mabo case; divisions of power in Australian society and law; the question of objectivity in law; the relationship and social change; judicial decision-making; and other issues.

Pacific Rim treaty threatens public health: Patent law and medical procedures

Doctors, surgeons, and physicians around the Pacific Rim should be concerned by the proposals revealed by WikiLeaks in the Trans-Pacific Partnership (TPP). One of the most controversial features of the TPP is the proposal to provide for patent protection in respect of medical procedures. As Public Citizen observed, ‘Health providers, including surgeons, could be liable for the methods they use to treat patients.’ The civil society group noted: ‘Essentially, except for when a surgeon uses her bare hands, surgical methods would be patentable under the U.S. proposal.’ The TPP takes a broad approach to patents and medicine; lacks appropriate safeguards; and fails to address larger questions about equity, development, and human rights. Such a measure could result in greater litigation against medical professionals; barriers to access to medical procedures for patients; and skyrocketing health costs.

Copyright law and mash-ups: A policy paper

This report provides an analysis of the cultural, policy and legal implications of ‘mash-ups’. This study provides a short history of mash-ups, explaining how the current ‘remix culture’ builds upon a range of creative antecedents and cultural traditions, which valorised appropriation, quotation, and transformation. It provides modern examples of mash-ups, such as sound recordings, musical works, film and artistic works, focusing on works seen on You Tube and other online applications. In particular, it considers - * Literary mash-ups of canonical texts, including Pride and Prejudice and Zombies, The Wind Done Gone, After the Rain, and 60 Years Later; * Artistic mash-ups, highlighting the Obama Hope poster, the ‘Column’ case, and the competition for extending famous album covers; * Geographical mash-ups, most notably, the Google Australia bushfires map; * Musical mash-ups, such as The Grey Album and the work of Girl Talk; * Cinematic mash-ups, including remixes of There Will Be Blood and The Downfall; and This survey provides an analysis of why mash-up culture is valuable. It highlights the range of aesthetic, political, comic, and commercial impulses behind the creation and the dissemination of mash-ups. This report highlights the tensions between copyright law and mash-ups in particular cultural sectors. Second, this report emphasizes the importance of civil society institutions in promoting and defending mash-ups in both copyright litigation and policy debates. It provides a study of key organisations – including: * The Fair Use Project; * The Organization for Transformative Works; * Public Knowledge; * The Electronic Frontier Foundation; and * The Chilling Effects Clearinghouse This report suggests that much can be learnt from this network of organisations in the United States. There is a dearth of comparable legal clinics, advocacy groups, and creative institutions in Australia. As a result, the public interest values of copyright law have only received weak, incidental support from defendant companies – such as Network Ten and IceTV – with other copyright agendas. Third, this report canvasses a succinct model for legislative reform in respect of copyright law and mash-ups. It highlights: * The extent to which mash-ups are ‘tolerated uses’; * The conflicting judicial precedents on substantiality in Australia and the United States; * The debate over copyright exceptions relating to mash-ups and remixes; * The use of the take-down and notice system under the safe harbours regime by copyright owners in respect of mash-ups; * The impact of technological protection measures on mash-ups and remixes; * The possibility of statutory licensing in respect of mash-ups; * The use of Creative Commons licences; * The impact of moral rights protection upon mash-ups; * The interaction between economic and moral rights under copyright law; and * Questions of copyright law, freedom of expression, and political mash-ups.