Help at hand to navigate legal minefields

Review(s) of: The journalist's guide to media law, 4th edition, by Mark Pearson and Mark Polden, Sydney: Allen and Unwin, 2011, 480 pp. ISBN 9781742370385; Blogging and tweeting without getting sued: A global guide to the law for anyone writing online, by Mark Pearson, Sydney: Allen and Unwin, 2012, 222 pp. ISBN 9781742378770.

Book review : "Carbon Capture and Storage Emerging Legal and Regulatory Issues" edited by Ian Havercroft, Richard Macrory, Richard B Stewart, Oxford, Hart Publishing, 2011

As the international community struggles to find a cost-effective solution to mitigate climate change and reduce greenhouse gas emissions, carbon capture and storage (CCS) has emerged as a project mechanism with the potential to assist in transitioning society towards its low carbon future. Being a politically attractive option, legal regimes to promote and approve CCS have proceeded at an accelerated pace in multiple jurisdictions including the European Union and Australia. This acceleration and emphasis on the swift commercial deployment of CCS projects has left the legal community in the undesirable position of having to advise on the strengths and weaknesses of the key features of these regimes once they have been passed and become operational. This is an area where environmental law principles are tested to their very limit. On the one hand, implementation of this new technology should proceed in a precautionary manner to avoid adverse impacts on the atmosphere, local community and broader environment. On the other hand, excessive regulatory restrictions will stifle innovation and act as a barrier to the swift deployment of CCS projects around the world. Finding the balance between precaution and innovation is no easy feat. This is an area where lawyers, academics, regulators and industry representatives can benefit from the sharing of collective experiences, both positive and negative, across the jurisdictions. This exemplary book appears to have been collated with this philosophy in mind and provides an insightful addition to the global dialogue on establishing effective national and international regimes for the implementation of CCS projects...

The Human Fertilisation and Embryology Act 2008 : restrictions on the creation of “saviour siblings” and the relevance of the harm principle

This paper provides an overview of the regulatory developments in the UK which impact on the use of in vitro fertilization (IVF) and embryo screening techniques for the creation of “saviour siblings.” Prior to the changes implemented under the Human Fertilisation and Embryology Act 2008, this specific use of IVF was not addressed by the legislative framework and regulated only by way of policy issued by the Human Fertilisation and Embryology Authority (HFEA). Following the implementation of the statutory reforms, a number of restrictive conditions are now imposed on the face of the legislation. This paper considers whether there is any justification for restricting access to IVF and pre-implantation tissue typing for the creation of “saviour siblings.” The analysis is undertaken by examining the normative factors that have guided the development of the UK regulatory approach prior to the 2008 legislative reforms. The approach adopted in relation to the “saviour sibling” issue is compared to more general HFEA policy, which has prioritized the notion of reproductive choice and determined that restrictions on access are only justified on the basis of harm considerations.

Is climate change litigation an effective strategy for promoting greater action to address climate change? What other legal mechanisms might be appropriate?

In recent times a widespread consensus on the reality and gravity of anthropogenic climate change has emerged. Perceived inadequacies in the Australian government’s legal and policy responses to climate change issues have resulted in environmental activists increasingly turning to the courts as a strategy to promote greater action to address adverse climate impacts. The efficacy of this strategy for achieving climate goals is limited by the time and expense of litigating, the restrictions inherent in environmental law administrative challenges, and the possibility that judicial decisions may be overruled by the legislature. To date, climate change litigation in Australia has met with varied success, yet its significance extends beyond the court room as an important mechanism for raising public, political and commercial awareness about climate change issues. Ultimately, however, the types of far-reaching changes needed to mitigate and manage adverse climate impacts require strong regulatory backing. The most effective approach to addressing the complex challenges posed by climate change is a coordinated suite of regulatory measures spearheaded by the Federal Government.

Perpetuating Racism: Legal Education, Race and Social Justice

By presenting the results of a content analysis of Australian undergraduate legal education, this paper examines the extent to which issues of race, ethnicity, discrimination, and multiculturalism feature within this component of the moral, ethical, and professional development of legal professionals. It will demonstrate that instead of encouraging a deep, critical and contextual understanding of such issues, legal education provides a relatively superficial one, which has important implications for the role that legal professionals play in overcoming injustices such as institutional racism, and the kinds of social reform that they are likely to undertake.

The function of property in creating an effective legal regime for trade in environmental offsets

Market-based environmental regulation is becoming increasingly common within international and national frameworks. Environmental offset and trading regimes are part of the market-based instrument revolution. This paper proposes that environmental market mechanisms could be used to introduce an ethic of land holder responsibility. In order for market based regimes to attract sufficient levels of stakeholder engagement, participants within such scheme require an incentive to participate and furthermore need to feel a sense of security about investing in such processes. A sense of security is often associated with property based interests. This paper explores the property related issues connected with environmental offset and trading scheme initiatives. Relevant property-related considerations include land tenure considerations, public versus private management of land choices, characteristics and powers associated with property interests, theories defining property and the recognition of legal proprietal interests. The Biodiversity Banking Scheme in New South Wales is then examined as a case study followed by a critique on the role of environmental markets.

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.

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.

Inhibiting outrage: tactics and counter-tactics in legal cases of sexual harassment

Sexual harassment can be conceptualised as an interaction between harassers and targets. Utilising 23 detailed legal transcripts, this study explored evidence of a range of perpetrator tactics and target counter-tactics. These tactics can be readily fitted into the backfire framework, which proposes that powerful perpetrators of perceived unjust acts are likely to cover up the actions, devalue the target, reinterpret the events, use official channels to give an appearance of justice, and intimidate or bribe people involved. Targets can respond using counter-tactics of exposure, validation, reframing, mobilisation of support, and resistance. The findings have implications for raising awareness of harassing tactics and recommendations for effective informal responses in organisations.