University of New South Wales Faculty of Law Research Series 2009

Law Students' Attitudes to Education: Pointers to Depression in the Legal Academy and the Profession?

Massimiliano Tani et al. — Sat, 19 Dec 2009 18:35:41 PST

A survey of 2,528 students across all faculties at UNSW was carried out in 2005 to collect information about their experiences and expectations of university life and study. Analysis of the data showed some unexpected and significant differences between law students’ attitudes to their university education when compared with students in a number of other faculties. The fact that law students reported different responses to questions about their choice of course, expectations of results and perceptions of employer’s preferences in graduates suggested that we should further analyse the data to ascertain the extent and kind of differences between law students and other students’ responses. Law students’ experiences and attitudes, as they emerged from the further analysis, showed a comparatively low level of personal autonomy and a strong element of competitiveness compared with medical students and with students from other faculties. The psychological literature suggests that lack of autonomy and lack of social connectedness are important factors in depression. The results of this study thus indicate a number of factors which might assist in helping us understand why law students are more likely to develop depression than students in other disciplines. The paper outlines directions for further research needed to confirm or disprove the associations between attitudes to university experience and depression suggested by the present study.

Sui generis rules

Lyria Bennett Moses — Sat, 19 Dec 2009 18:20:17 PST

As technology advances, there is often pressure on the legal system to “respond” or “keep pace”. When contemplating law reform in response to this pressure, there is a tendency to propose new rules designed to apply specifically to the new technology. As a result, technological change often leads to a proliferation of sui generis legal rules. As the creation of sui generis rules is one common temptation for rule-makers wishing to respond quickly to emerging technologies, this paper will consider whether sui generis rules are an effective approach for dealing with the pacing problem. In deciding whether sui generis rules are truly appropriate, it is important to take account of their advantages and disadvantages compared to a more broadly-framed approach. It is also necessary to consider alternative approaches, such as utilising a broad category and tailoring the law’s application to the new entity, activity or relationship within that broad category or employing relatively technology-neutral sui generis rules. Unless the tendency to enact narrowly framed legislation is minimised, the possibility for further legal problems as technology continues to evolve is high.

Conviction, detention and removal: the multiple punishment of offenders under section 501 Migration Act

Michael Grewcock — Thu, 03 Dec 2009 23:15:05 PST

Under S501 of the Migration Act, being imprisoned for a criminal offence can constitute grounds for visa cancellation, even for people who have spent most of their lives in Australia. ‘Non-citizens’ who have had their visas cancelled in this way are liable to detention on completion of their prison sentence; form a distinct cohort within the immigration detainee population; and are routinely deported. Developing themes outlined initially at the Critical Criminology conference hosted by Monash University in Melbourne in July 2009, this paper examines the punitive implications of S501 including: its impact on risk assessment and the parole process; the institutionalisation of double punishment; and the multiple mechanisms of disempowerment operating through the detention regime. While this remains work in progress, the paper argues that criminal convictions do not justify detention and removal, and suggests a framework for future research, as part of a wider project to examine the administrative transformation of lawful into unlawful subjects.

Government Liability in Negligence

Mark Aronson — Tue, 24 Nov 2009 01:57:37 PST

The tort reform legislation of most Australian jurisdictions includes provisions directed specifically at protecting government defendants from civil liability. The legislation makes it harder to sue for breach of statutory duty, regulatory failure, the exercise of ‘special statutory powers’, and negligent failure to inspect the roads. These changes reflect an assumption long held at common law that there is something different about alleging government negligence, at least where the government is exercising statutory powers or performing statutory duties. The cases and reformers have long searched for the answer to the question of what that ‘something’ might be. This article considers the common law, analyses the legislation and then concludes by suggesting that a more principled approach would, in fact, focus on the nature of the functions performed, rather than on the identity of the defendant.

The Great Depression, This Depression, and Administrative Law

Mark Aronson — Tue, 24 Nov 2009 01:51:06 PST

The Great Depression contributed to the rapid growth in the size and functions of the administrative state. While its importance for administrative law scholarship was greater in America than in Australia or the United Kingdom, it focused scholars everywhere on questions of the democratic legitimacy of government institutions functioning beyond any practical oversight of Parliament. The current global economic crisis poses similar questions. New banking laws permit forced sales and nationalisation in the UK, and the laws relating to compensation for government interventions in both Australia and the UK carry the potential for serious unfairness. Vast government stimulus programs contain few legal constraints or genuine oversight mechanisms. These are issues warranting the attention of administrative law scholars.

Private Bodies, Public Power and Soft Law in the High Court

Mark Aronson — Tue, 24 Nov 2009 01:42:13 PST

This article will argue that the pessimism about the sustainability of some of the 'core' achievements of judicial review in the last 30 or so years has missed the mark. Specifically, there is no clear and present danger to Australia's expansionist cases regarding standing to sue and the expansion of natural justice beyond the realm of strict legal rights. Pessimism on those scores is misplaced. Secondly, however, this article will argue that the recent cases will make it very difficult for those seeking some purchase out of the internal guidelines, rule books and practice manuals of both public and private authorities. These are the 'soft laws' that abound in both public and private spheres 'rules' with neither statutory nor contractual force. Australia's version of the rule against fettering statutory discretions has led its courts to decline to enforce soft law as such, whether overtly or via natural justice principles.

Speaking very broadly, the critical issue for Australia concerns judicial review's adaptability to the changing forms of public power. This article would not advocate following all of the English developments. Our courts should nevertheless recognise that public power is increasingly exercised from places within the private sector, by non-government bodies, and according to rules found in management manuals rather than statute books. If judicial review is about the restraint of public power, it will need to confront these shifts in who exercises public power, and in the rules by which they exercise it.

Charities for the Benefit of Employees: Why Trusts for the Benefit of Employees Fail the Public Benefit Test

Fiona Martin — Sun, 15 Nov 2009 16:33:49 PST

Charities are granted significant financial benefits through the exemption from income tax and deductibility of donations under the provisions of the Income Tax Assessment Act, 1997 (Cth). The concept of what is a charity or a charitable purpose which is a fundamental requirement of the income tax exemption is not defined in any taxation legislation and must be found in the common law. The courts have concluded that a charitable purpose includes charities for the benefit and assistance of the sick. An organization that has been established for the benefit of employees and former employees who are suffering work related illnesses would therefore have a charitable purpose. There is however the further requirement that the entity’s objectives must be for the benefit of the public. This article analyses the requirement of public benefit for a charitable purpose as it relates to an entity established for the benefit of employees and former employees of a large corporation. It discusses the rationale for the public benefit requirement and how the courts have applied this criterion to trusts for the benefit of employees and former employees. In conclusion it examines alternative approaches to the current application of the public benefit test.

Family Protection and Deportations or Removals: The Relevance of the Protection of Family Life for the Assessment of Deportations or Removals in Australia

Gregor Heissl — Sat, 07 Nov 2009 15:40:44 PST

Obviously deportations or removals of persons, who have spent a certain period in Australia has tremendous impacts and consequences on their lives and most likely on the ones of their families as well. Therefore it is worth assessing how significant family related aspects are taken in the administrative decision-making process concerning deportations or removals. The essay starts with a description of the domestic legal framework, to evaluate conditions under which such measures are legitimate. An overview on family protection in Australia presents the different sources of human rights together with its content and scope. More specifically the notion of family life for the assessment of the legality of deportations or removals is scrutinised by examining the compliance with international treaty obligations as well as the significance of citizenship. Finally, two relevant General Directions (GD), given by the Minister for Immigration and Citizenship and providing guidelines, are assessed in the context of sufficient safeguards for family life.

The protection of human rights in NSW through the Parliamentary process – a review of the recent performance of the NSW Parliament’s Legislation Review Committee

Andrew Byrnes — Sun, 25 Oct 2009 23:06:27 PDT

The NSW Parliament’s Legislation Review Committee was established on the recommendation of a Parliamentary inquiry into the desirability of a bill of rights of rights for New South Wales. While the inquiry found that Parliament had not always fully observed human rights standards, it saw improved legislative scrutiny of bills as a more appropriate response than the enactment of a bill of rights. This paper examines a number of aspects of the Committee’s recent work in order to ascertain whether under its traditional common law scrutiny mandate the Committee consistently examines draft legislation in the light of the international human rights norms by which Australia is bound. It concludes that the Committee does reasonably well in identifying classical civil liberties concerns, though it tends not to apply a rigorous human rights analysis to these rights. On the other hand, notwithstanding its broad interpretation of its mandate, the Committee has done less well in relation to the identification and analysis of other rights, in particular in relation to economic, social and cultural rights. The paper argues that even with enhanced Parliamentary scrutiny, the adoption of a bill of rights would make a difference, as it would provide a clear and comprehensive set of standards and a framework for full human rights analysis, while the prospect of even soft judicial review would focus the minds of policymakers and legislators on human rights issues in the legislative process.

Problems of High Seas Governance

David Freestone — Thu, 22 Oct 2009 16:48:29 PDT

The high seas cover more than 50% of the planet’s surface. The last thirty years have seen unparalleled expansion of human activities and impacts on the oceans and on the high seas in particular. At the same time there is evidence of the impacts of the increased intensity of existing human activities; increases in maritime transportation, marine pollution, particularly from land based sources, such as garbage, as well as traditional fishing techniques. These issues, which affect waters both inside and outside national jurisdiction, pose governance issues. This chapter seeks to set out the key risks that high seas areas face, the plethora of bodies with regional and sectoral jurisdiction but also the lacunae – the regulatory and governance gaps that exist.

Multiple punishments: the detention and removal of convicted non-citizens

Michael Grewcock — Thu, 15 Oct 2009 20:37:45 PDT

Under the Migration Act, being imprisoned for a criminal offence can constitute grounds for visa cancellation, even for people who have spent most of their lives in Australia. ‘Non-citizens’ who have had their visas cancelled in this way are liable to detention on completion of their prison sentence; form a significant proportion of the current immigration detainee population and are routinely deported. This paper examines the punitive implications of this policy including: its impact on the parole process; the institutionalisation of double punishment; and the multiple mechanisms of disempowerment operating through the detention regime. While this is still work in progress, the paper argues that criminal convictions do not justify detention and removal, and suggests a framework for future research.

Trade and Equality: A Relationship to Discover

Gillian Moon — Mon, 12 Oct 2009 22:48:10 PDT

There is conspicuous inequality among World Trade Organisation (WTO) member countries. WTO law has responded to this by creating a set of rules (Special and Differential Treatment or S&DT) which permit specially favorable trading treatment to support the participation of developing countries, even though equality of treatment is a central principle and objective of WTO law. Yet, it is widely agreed that S&DT has not succeeded in its aim of advancing trade equality. Insight into the reasons for this relative failure may be drawn from another body of international law which has equality as a core principle and objective and which also permits special treatment, human rights equality law. Analyzing commonly identified flaws in S&DT from the perspective of the theoretical, conceptual and strategic framework of human rights equality law enables the flaws to be understood more deeply. It also offers a new perspective on the impasse which has been reached in the Doha Round of multilateral trade negotiations and provides robust guidance as to how S&DT may be made stronger, more effective and more operational.

Foucault, anti-humanism and human rights

Ben Golder — Mon, 12 Oct 2009 22:39:38 PDT

Responding to recent engagements with Foucault, and in part to the provocation of this conference (‘… antifoundational humanism …’), this paper argues that in his late work Foucault does not submit to the ‘moral superiority’ of humanism and introduce a liberal humanist subject. Rather, Foucault’s late investigations of subjectivity constitute a continuation and not a radical departure from his earlier positions on the subject. Such a reading helps us to assess Foucault’s late supposed ‘embrace’ of, or return to, human rights – which is here re-interpreted as a critical anti-humanist engagement with human rights, conducted in the name of an unfinished humanity. In this way, the paper engages not only with the way in which mainstream accounts of human rights tend to assimilate anti-foundational and post-structural challenges, but also with the quality of Foucault’s own political legacy and future in the age of human rights, 25 years on.

The International Climate Change Legal and Institutional Framework: An Overview

David Freestone — Thu, 01 Oct 2009 20:01:20 PDT

In December 2009 the Parties to the 1992 UN Framework Convention on Climate Change (UNFCCC) will meet at the 15th session of the Conference of the Parties (COP) in Copenhagen to agree the fundamental principles of the legal regime that will apply post 2012. This chapter provides an overview of the complex regime established by the Convention, the processes leading up to the adoption of the Kyoto Protocol and key implementation challenges it has experienced. It introduces some of the key processes and institutions and describes some of the key concepts that will be further developed in later chapters. It also discusses briefly the explosive growth of carbon trading and the challenges faced by the UNFCCC parties at Copenhagen.

Managing funds for after tax returns: unresolved issues about unrealised gains

Gordon Mackenzie — Wed, 23 Sep 2009 22:55:53 PDT

Managing a portfolio for after tax returns can be difficult and expensive and the paper reviews some perceived difficulties with managing a portfolio for after tax returns, actual practices used by managers and five methods for reporting after tax returns to investors and potential investors under Australian tax conditions. The value of unrealised gains in a portfolio is not quite clear as, even though it is considered to be valuable in after tax management, a US study shows that large unrealised gains in a portfolio may not be attractive to potential investors.

Beyond Methods - Law & Society in Action

Patrick Schmidt et al. — Wed, 23 Sep 2009 22:45:03 PDT

This essay is the introductory chapter of a book about research methods in the field of law and society (Halliday, S. and Schmidt, P., Conducting Law and Society Research: Reflections on Methods and Practices, New York: Cambridge University Press, 2009). Through interviews with many of the most noteworthy authors of law and society, Conducting Law and Society Research takes readers behind the scenes of empirical scholarship, showing the messy reality of the research process. The challenges and the uncertainties, so often missing from research methods textbooks, are revealed in candid detail. The accessible and revealing conversations about the lived reality of classic projects will be a source of encouragement and inspiration to those embarking on empirical research, ranging across the full array of disciplines that contribute to law and society. In this introductory essay, we argue for greater candor in discussing the messiness of empirical research methods, particularly in the field of law and society which has for many years explored the gap between rules and reality. We also examine the role which luck (both good and bad) plays in empirical research. Ultimately, we suggest that narratives of the research process such as the conversations contained in the book are a necessary complement to research methods textbooks. They reveal, in powerful ways, that “good research” displays not an absence of problems but the care taken in negotiating them.

Inspecting the Despicable, Assessing the Unacceptable: Prohibited Packets and the Great Firewall of Canberra

David Vaile et al. — Wed, 23 Sep 2009 22:32:11 PDT

At first glance the Australian Government’s 2008 proposal to install a two-layered mandatory Internet ‘content filtering’ regime at ISP level—rather than the current opt-in filtering at the user’s personal computer—appears relatively straightforward, with a clear mandate, solid unobjectionable aims, little change from existing legal principles and governance frameworks, and challenging but achievable technical goals. Closer inspection does not sustain this appearance; each of these conclusions is shaky; and there are as many interpretations of what is really at stake as there are observers. This paper explores some of the issues that complicate policy development and technical assessment.

Information Security Standards

Meiring de Villiers — Tue, 22 Sep 2009 00:03:51 PDT

Businesses, non-profit organizations and government agencies may be held liable for failure to safeguard sensitive information in their possession. The threat of liability creates incentives to improve security standards, but uncertainty about the required standard and its judicial application may result in under- or overcompliance. Perfect security is neither possible nor the goal of tort law, but where does the law draw the line? This article analyzes the legal standard of information security that must be achieved to avoid liability. A numerical example illustrates its implementation.

Ethics and Integrity in Tax Administration

Michael Walpole — Sun, 13 Sep 2009 17:42:32 PDT

This paper considers ethics and integrity in tax administration. The paper specifically focuses on income tax self assessment and issues associated with it in the context of ethics and integrity. Then the paper considers the Australian tax compliance model along with the roles of tax advisors and of tax administrators in the self assessment process and suggests some strategies for encouraging an ethical approach by both of these groups as well as taxpayers in an income tax system.

Defining ordinary income after McNeil

Maurice Cashmere et al. — Mon, 24 Aug 2009 22:17:30 PDT

The High Court decision in FCT v McNeil (2007 HCA 5) decided that the market value of put options issued to shareholders over their shares in the company, as a mechanism for carrying out a share buy-back, was ordinary income at the time of issue in the hands of those shareholders who chose not to participate. The jurisprudential basis on which this decision was made is not manifestly clear, but the impact of the decision has the potential to set aside the traditional distinction which has been made between receipts which are on revenue account and those which are on capital account. This article seeks to establish that the approach which is manifest in McNeil is out of step with established principles and that the High Court provided no convincing reasons for setting aside the principles which have traditionally been accepted as determining which receipts are to be regarded as being on revenue account. This article seeks to show that the approach which is manifest in McNeil was also apparent in the earlier majority High Court decision in FCT v Montgomery (1998) 198 CLR 639, although McNeil does not appear to have relied on Montgomery. However, the authors seek to establish that the principles which can be derived from the majority decision in Montgomery are not sustainable. The problem which emanates from Montgomery is identified and a return to the position which existed prior to Montgomery is advocated as the solution to the problem which now exists. It is suggested that the legislative response of creating different tax treatment for call and put options is a disappointing response, with a preferable approach being the restoration of the previous tax treatment, which had been the undertaking given to industry and capital markets by the government.