Legal professional privilege and the foreign lawyer in Australia

Legal professional privilege is very important to lawyers and clients alike. It has evolved within the common law world over a period of centuries. In a domestic Australian context the test to establish what attracts advice privilege has become reasonably well settled. However, the increasingly international character of commerce has revealed new challenges. Is the current test appropriate to determine whether advice given outside Australia by a foreign lawyer is privileged? This article considers that question in detail. After examining the historical development of legal professional privilege, the article discusses Kennedy v Wallace (2004) 208 ALR 424 (at first instance) and Kennedy v Wallace (2004) 142 FeR 185 (on appeal). The article concludes that the current test is both capable and appropriate if properly applied.

Socratic teaching, the law and professional identity

This paper uses critical discourse analysis of interactions between law students and their lecturer to show how ‘Socratic’ teaching is used as a powerful technique to shape student identities. Data from a moot or simulated court in taxation law is analysed to show how students position themselves and are positioned as legal professionals. The paper argues that one student’s poor performance in the moot can be interpreted as resistance to attempts to influence her to adopt an uncongenial speaking position. This example supports the view that the difficulty law students have in learning to ‘think like a lawyer’ results not from a failure of skill but from the problems they have in assuming the speaking position of a legal professional. It is suggested that educators should consider helping students come to terms with the fragmented and contradictory subject positions associated with professionalisation.

Professional legal education reviews : too many 'what's, too few 'how's

Former colonies of the British Empire, Hong Kong and Australia inherited the common law system and the basic structure of legal education and training from England and Wales and remain the closest siblings in terms of proximity in distance and the high degree of similarity between their respective frameworks for legal education and training. This article first summarizes the major reviews of legal education and training in these three jurisdictions: England and Wales, Australia and Hong Kong over the last four decades and argues that while these reviews are keen on investigating ‘what’ is lacking in the curriculum and ‘what’ needs to be changed to equip graduates for the challenges of the day, they do not seem to have shown the same level of enthusiasm in identifying ‘how’ the intended outcomes prescribed can be achieved. Nevertheless, law schools in these jurisdictions recently began to tap on, and combine with the improved classroom pedagogy, clinical legal education and internship, innovative teaching tools and solutions in an attempt to deliver more enhanced learning experience to students. The article examines the role ascribed to technology in legal education and training with a particular reference to SimPLE, a e-learning platform developed in England and Wales which has been put to use in Australia as well, and the reform initiatives taken, and planned to be taken, by the Department of Professional Legal Education at the University of Hong Kong in its Postgraduate Certificate in Laws programme. This article concludes by pointing out the importance of collaboration among stakeholders including teachers, university administration and the legal profession in effecting a more active role of technology in legal education and training of today.

Is scholarship of teaching and learning in practical legal training a professional responsibility?

In Australia, applicants for admission to the legal profession must hold appropriate academic qualifications, and competently complete practical legal training (PLT). The author's research investigates institutional PLT practitioners' engagement with scholarship of teaching and learning (SoTL). The theoretical framework for the research draws on Bourdieu and Passeron's reflexive sociology of education and culture. This article focuses on responses to a paramount obligation proposition put to 34 PLT practitioners during semi-structured interviews: Might lawyers' paramount obligations to the court intersect with PLT practitioners' teaching and assessment practices? The proposition elicited responses and insights about field forces within the individual and organisational dimensions of teaching and learning in PLT. These include top-down/bottom-up pressures that impinge on PLT practitioners' engagement with SoTL.

General practitioners' perspectives regarding competence and confidentiality in an adolescent with suspected anorexia nervosa: legal and ethical considerations

In Victoria, Australia, the legal position regarding young people's competence to make medical treatment decisions has not been clarified in legislation, and a number of often vague common law decisions must be relied on for guidance. This situation produces a degree of uncertainty about appropriate professional practice, while also potentially impeding young people's rights claims in health care settings. With this in mind, the present research explored general practitioners' competence and confidentiality decisions regarding a 17-year-old female who presented with symptoms of an eating disorder. Questionnaires were sent to a random sample of 500 Victorian general practitioners, of whom 190 responded. After reading a case vignette, general practitioners indicated whether they would find the hypothetical patient competent and if they would maintain her confidentiality. Seventy-three per cent of respondents found the patient competent and most would have maintained confidentiality, at least initially. However, subsequent analysis of the rationales supplied for these decisions revealed a wide diversity in general practitioners' understandings and implementations of extant legal authority. This research highlights the need for general practitioners to be exposed to up-to-date and clinically relevant explanations of contemporary legal positions.

Determining the professional sport broadcasting landscape : an Australian football club perspective

The professional sport broadcasting landscape has received much attention from an economic and legal perspective. While the economic and legal focus has been the predominant association with sport broadcasting, there has been little research undertaken into the breadth of delivery and significance of broadcast coverage. The aim of this paper was to identify the professional sport broadcasting landscape in Australia. The sport broadcast landscape was examined from the perspective of two professional football codes. In-depth interviewing of senior managers of 11 AFL, and 10 NRL clubs was undertaken with the resulting data analysed, coded and emergent themes identified. Three core themes emerged: identified as territory, distribution and profile. A further seven sub-themes specific to the outcomes associated within each category were also identified. Major findings highlight the territorial nature of the Australian professional football league market, identifying the way in which clubs are representative of particular regions. Issues associated with free-to-air delivery, brand recognition and core market attributes were also identified. Results are presented; implications for management and opportunities for future research are discussed.

Information systems development contracts : An exploratory study of Australian legal pratitioners' and information systems professionals' perceptions

IS professionals are primarily concerned with the development of a project to meet the goals of a client. Unfortunately, IS professional do not always pay close attention to the contract or to its management and are often unaware of the legal implications of the contracts to which they are assenting. Legal advice can be sought during pre-contractual processes to help ensure that the contract meets the expectations of all the parties. If the project does not meet stakeholder’s expectations, thus causing a contract to come into dispute, lawyers may be called in to review the contract and to seek a settlement. This paper reports an exploratory study of the differences in perceptions of IS development contracts that exist between IS professionals and legal practitioners.

Professional artists in Vietnam : intellectual property rights, economic and cultural sustainability

The article outlines the legal context for Vietnamese artists that is not discussed in other literature, including the scarcity of data on the art market, the reasons for failure to enforce intellectual property (IP) rights and legal contracts, and the rapid growth of private-sector art dealing that makes an examination of the legal context so essential. The author's field research in Vietnam since 2003 is linked to analyses of Vietnam's art market and to civil codes and other international agreements that determine professional artists’ IP rights. This illustrates the reasons why IP rights have not been enforced or arbitrated in Vietnam. The author includes a discussion of the importance of enforcing IP law for the maintenance of artists’ incomes and careers, the development of a national art market, and for innovation and cultural sustainability in Vietnam.

First-year law students’ construction of professional identity through writing

While there is a considerable body of research on law student identity construction based on interviews and transcripts of classroom talk, there is very little work based on student written texts. In this article two letters of advice written by beginning law students are analysed, using Ivanic and Camps’s (2001) framework, as an example of identity formation. Legal identity is argued to be formed by students’ attempts to accommodate a dynamic, partial, practitioner role of provider of advice to the traditional analytic focus of the law student. The process of accommodation is evident in the language of the letters, which show disfluencies resulting from attempts to combine different roles into a coherent legal identity. Comparison with a professionally written letter suggests that, rather than seeking to shape a coherent position, lawyers are able simultaneously to hold incompatible perspectives, concealing the tensions by foregrounding some perspectives and backgrounding others.

Professional training in applied psychology : towards a signature pedagogy for forensic psychology training

Forensic Psychology is a recognised and important sub-specialty of the Psychology discipline. However, after an expansion in the number of training places that were offered when programmes were first developed, recent years have seen these diminish in response to changes in university policies, resulting from reformulated Federal government funding models. In this article, we argue that it is important for the future of specialist areas of professional psychology to not only articulate the core skills and competencies that are associated with specialist practice but also to develop unique and distinctive approaches to teaching and learning signature pedagogies. Based on the premise that forensic psychological practice is, indeed, a distinctive activity that requires different skills and, importantly, different ways of thinking about the work from other areas of professional psychology, it is suggested that professional training in this area should aim to develop a signature pedagogy which combines methods of teaching and learning that have been developed in legal training programmes with principles of problem-based learning.

Professional autonomy of Victorian surgeons in the context of law and ethics

An analysis of legislation and court decisions demonstrates that the privilege of autonomous decision making by surgeons in Victoria has become progressively constrained. Factors that have led to this include workforce issues and the protection of the public combined with increasing involvement of the courts in questions involving medical ethics.

Learning leadership is in your hands : toward a scholarship of teaching in practical legal training

A scholarship of teaching in post-graduate pre-admission practical legal training is germane to perceptions of the quality of accreditation of young Australian lawyers practicing in a globalised profession. Traditional forms of teaching scholarship in law have been identified as influencing the well being of law students and practitioners. This article reviews literature that frames a definition and prerequisites for a scholarship of teaching, its traditional and potential forms, and its subject matter. It considers the present position of a scholarship of teaching in practical legal training, and the historical and organisational epistemological approaches to professional practical training (compared to academic education) that shape that position. Problems of validity, measurement, performativity, and engagement in teaching scholarship are introduced, followed by consideration of possible methodological approaches drawing on Schon’s conception of action research, together with emergent methodologies, technologies and practical considerations that enable individual practitioners to pursue and lead a scholarship of teaching in practical legal training. The article frames questions for further doctoral research in relation to practical legal training teachers’ engagement with the scholarship of teaching.

Keeping gender on the agenda : theorising the systematic barriers to women lawyers in corporate legal practice

Despite the implementation of policies and procedures to redress the gender imbalance at the higher echelons in Australian corporate law firms, only a paucity of women successfully tread the path to equity partnership. In this article, it is argued that it is the systemic, rather than the overt, barriers that present the major obstacle to sexual equality within the corporate legal workplace. Neo-Marxian thought, in particular the work of Charles Derber on the proletarianisation of professional workers, as well as contemporary feminist thought, is utilised to explore why profoundly gendered assumptions in relation to the 'ideal worker' norm remain deeply embedded in the mindsets and attitudes of those organising the legal workplace. It is suggested that fear of change to work practices within firms has not only an ideological but also a material base. It is economically determined. Highly trained women lawyers with family work responsibilities who take up flexible work arrangements in firms are fulfilling a proletarian role and their under-utilised labour is being extracted to increase profit share at the apex and facilitate the progress of their unencumbered colleagues along the path to partnership.

Learning leadership is in your hands : toward a scholarship of teaching in practical legal training

This article seeks to promote discussion about scholarship of teaching in Australian postgraduate pre-admission practical legal training (PLT). This is germane to perceptions of the quality of accreditation of young Australian lawyers practicing in a globalised profession. The article gives a definition and outlines the prerequisites for scholarship of teaching. The present position of teacher engagement with scholarship of teaching in Australian PLT is considered, together with the historical and organisational epistemological approaches to professional practical training. Problems of validity, measurement, performativity, and engagement in teaching scholarship are discussed. Possible methodological approaches, including Schön’s conception of action research, together with other methodologies, technologies, and practical considerations, are considered. These discussion points are directed toward future exploration of PLT teachers’ engagement with, and leadership in, the scholarship of teaching in PLT.

Negotiating gender boundaries : tensions in developing a professional identity as a female physical educator in boys' schools

Historically, gendered boundaries and their impacts on education have been widely contested. The global gender policy debate over the last sixty years has significantly vacillated between prioritising issues of educational and social practice that appear to privilege one gender over another (Lingard, Martino & Mills, 2009). The very nature of the title ‘Boys’ school’ conveys a hard gendered boundarying. In a socio-political climate where boys’ supposed underachievement has been attributed to the presumed “feminisation of teaching” (Hoff Sommers, 2000) it is not surprising that the rhetoric around the purpose and intent of boys’ education privileges masculinist discourses and practices. Physical Education (PE) and sport is often implicated as prominent curriculum spaces where the tensions produced through gendered discourse-power relations are played out, often at the expense of marginalised others.