2011 - Vol 36(2) - Lawyers, Courts & Social Change


Testing the limits of the adversarial system

Pro bono publico

Law, language and justice

Changing public interest law: Overcoming the law's barriers to social change lawyering

Paula O'Brien

altlj-2011-36-2-public-interest-law-sroth-smlPublic interest law is being practised every day in Australia in community legal centres (‘CLCs’), legal aid offices and specialist public interest law organisations such as the Public Interest Advocacy Centre (‘PIAC’) and the Public Interest Law Clearing Houses (‘PILCHs’).1 At least some of the staff in these organisations would probably not see themselves as ‘doing public interest law’. However, the work of these organisations in assisting disadvantaged individuals or groups to access the legal system, in order to solve some immediate legal problem, or secure a benefit for a wider group of similarly-placed people, or defend a progressive social value (such as environmental protection or religious tolerance), comes within my definition of ‘public interest law’.2

(2011) 36(2) AltLJ 82


Advocacy on trial

Lizzie O'Shea

altlj-2011-36-2-advocacy-on-trial-sroth-smlIn his recently published memoir, Decision Points, George Bush documents the decision to authorise enhanced interrogation techniques, one of the more controversial products of his presidency. Interestingly, in his reflections on this decision, he explicitly notes the role of his lawyers, in statements that manage to be both defensive and self-congratulatory. Discussing the criticism the administration received in the years after the event, Bush notes:

Once the threat seemed less urgent and the political winds had shifted, many lawmakers became fierce critics. They charged that Americans had committed unlawful torture. That was not true. I had asked the most senior legal officers in the US government to review the interrogation methods, and they had assured me that they did not constitute torture. To suggest that our intelligence personnel violated the law by following the legal guidance they received is insulting and wrong.1

There are a few remarkable things about this statement. The most obvious, equalled only by its importance, is that it is simply wrong. Two attorneys from the Office of Legal Counsel, John Yoo and Jay S Bybee, signed off on legal advice that laid the groundwork for CIA contractors to use waterboarding, sleep deprivation and other harsh interrogation techniques. This advice sits clearly at odds with the general consensus in the legal and political community, which is that waterboarding constitutes torture.2 Presumably Yoo and Bybee were aware that their advice would never be subjected to the scrutiny of an independent judiciary; the torture memos will forever be a matter of opinion. But there are good grounds for arguing that this opinion is well outside the bounds of the law.

(2011) 36(2) AltLJ 87


Can a law school help develop skilled legal professionals? Situational learning to the rescue!

Margaret Castles and Anne Hewitt

While the importance of equipping graduates with professional skills is often recognised, both academics and students acknowledge that the process of teaching and learning skills at law school can be difficult. In this article the authors will reaffirm the continuing importance of skills teaching in Australian law schools and argue these difficulties are not insurmountable. We briefly explore our own experiences in teaching professional skills in a tertiary context, using a situational learning methodology (where students put themselves in the position of practising lawyers), and discuss some of the lessons we have learned in the process of adapting and refining our approach to this perennially challenging issue.

(2011) 36(2) AltLJ 90


The cost of justice? Recovering party-party costs when acting ‘pro bono’

Kaushalya Mataraaratchi and Jonathan Tyne

The recovery of party-party costs — that is, the recovery of costs incurred by a party in legal proceedings from another party in the proceedings — is governed in Australia by the indemnity principle. This principle states that a client must have an obligation to pay costs to a legal practitioner before those costs can be recovered from the other party in litigation.1 It might seem, then, that an order for party-party costs would be unproductive if made in favour of a party who is represented by lawyers acting pro bono, since they are not obliged to pay those lawyers’ fees.2

(2011) 36(2) AltLJ 96


When police complaint mechanisms fail: The use of civil litigation

Tamar Hopkins

When things go wrong in matters between the police and the community, who do we turn to? In short, who polices the police? The primary means to seek redress for police misconduct is by making a formal complaint. Unfortunately, in leaving police responsible to investigate police complaints, complaint mechanisms throughout Australia are inadequate, too often do not resolve the dispute and fail to meet international human rights standards.

An alternative approach to dealing with complaints against the police is by the use of civil litigation proceedings. Civil litigation is well developed as a police accountability mechanism in the United States and the United Kingdom. There is evidence, both in Australia and internationally, that this approach tends to vindicate complainants more frequently than existing internal complaint systems.1

(2011) 36(2) AltLJ 99


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