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.

Social clubs and social capital : the effect of electronic gaming machines in disadvantaged regions on the creation or destruction of community resilience

The role of particular third sector organisations, Social Clubs, in supporting gambling through the use of EGMs in venues presents as a difficult social issue. Social Clubs gain revenue from gambling activities; but also contribute to social well-being through the provision of services to communities. The revenues derived from gambling in specific geographic locales has been seen by government as a way to increase economic development particularly in deprived areas. However there are also concerns about accessibility of low-income citizens to Electronic Gaming Machines (EGMS) and the high level of gambling overall in these deprived areas. We argue that social capital can be viewed as a guard against deleterious effects of unconstrained use of EGM gambling in communities. However, it is contended that social capital may also be destroyed by gambling activity if commercial business actors are able to use EGMs without community obligations to service provision. This paper examines access to gambling through EGMs and its relationship to social capital and the consequent effect on community resilience, via an Australian case study. The results highlight the potential two-way relationship between gambling and volunteering, such that volunteering (and social capital more generally) may help protect against problems of gambling, but also that volunteering as an activity may be damaged by increased gambling activity. This suggests that, regardless of the direction of causation, it is necessary to build up social capital via volunteering and other social capital activities in areas where EGMS are concentrated. The study concludes that Social Clubs using EGMs to derive funds are uniquely positioned within the community to develop programs that foster social capital creation and build community resilience in deprived areas.

Anthony Browne and the cultural capital of classic fairy tales

Prolific British author/illustrator Anthony Browne both participates in the classic fairy-tale tradition and appropriates its cultural capital, ultimately undertaking a process of self-canonisation alongside the dissemination of fairy tales. In reading Browne’s Hansel and Gretel (1981), The Tunnel (1989) and Into the Forest (2004), a trajectory emerges that moves from broadly intertextual to more exclusively self-referential modes of representation which reward readers of “Anthony Browne”, rather than readers of “fairy tales”. All three books depict ‘babes in the woods’ stories wherein child characters must negotiate some form of threat outside the home in order to return home safely. Thus, they represent childhood agency. However, these visions of agency are ultimately subordinated to logics of capital, which means that child readers of Browne’s fairy-tale books are overtly invited to identify with children who act, but are interpellated as privileged if they ‘know’. Bourdieu’s model of ‘cultural capital’ offers a lens for considering Browne’s production of ‘value’ for his own works within a broader cultural landscape which privileges literary fairy tales as a register of juvenile cultural competency. If cultural capital can be formulated most simply as the symbolic exchange value of approved modes of knowing and being, it is clearly helpful when trying to unpack logics of meaning within heavily intertextual or citational texts. It is also helpful thinking about what kinds of stories we as a culture choose to disseminate, choose to privilege, or choose to suppress. Zipes notes of fairy tales that, “the genre itself becomes a kind of institute that is involved in the socialization and acculturation of readers” (22). He elaborates that, “We initiate readers and expect them to learn the fairy-tale code as part of our responsibility in the civilizing process” (Zipes 29), so it is little wonder that Tatar describes fairy tales as “a vital part of our cultural capital” (xix). Although Browne is clearly interested in literary fairy tales, the most obvious strategies of self-canonisation take place in Browne’s work not in words but in pictures: hidden in plain sight, as illustration becomes self-reflexive citation.

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.

Shaping and re-shaping social capital in buyer-supplier relationships

Social capital plays an important role in explaining how value is created from firms' network relationships, but little is understood about how social capital is shaped over time and how it is re-shaped when firms consolidate their network ties. In response, this study explores the evolution of social capital in buyer–supplier relationships through a case study of a company undertaking radical product innovation, and examines the corresponding changes in the firm's network of buyer–supplier relationships. The analysis shows that social capital is built in a decidedly non-linear and non-uniform manner. The study also reveals considerable interaction among the dimensions of social capital throughout the evolution of the firm's network, and emphasizes the importance of the cognitive dimension—a feature receiving little attention thus far. The evidence shows, too, that efforts to strengthen social capital need to increase when network ties are sacrificed to prevent unintended consequences for firms' longer-term value creation.

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.

Urban, regional, national and global knowledge capital [Guest editorial]

Purpose – The purpose of this paper is to introduce the JKM 2010 annual special issue on knowledge based development (KBD) with reference to the multi-level analysis characteristic of the field. ----- ----- Design/methodology/approach – A description of the knowledge management approach at ESOC (European Space Operations Centre of the European Space Agency) is provided first. At the core of this approach is the breakdown of knowledge in individual technical domains followed by coverage analysis and criticality assessment. Such a framework becomes the reference for best knowledge acquisition, transfer and storage locus identification and subsequent knowledge management practices and guidelines. ----- ----- Findings – KBD provides an integrated framework to account for multidisciplinary analyses and multilevel practices in knowledge capital generation, distribution and utilization. ----- ----- Originality/value – The collection of papers included in the annual special issue on KBD provides a representative, composite view of the research topics and applications concerns in the field. Involving a number of disciplines and levels of analysis, issues ranging from the technological gatekeeper to global knowledge flows show the interdependence of KBD concepts and tools.

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.