2014 - Vol 39(2) - Public Interest - Private Rights

AltLJ39-2-Cover-front-finalWhose security?

Open and closed justice

Vulnerable before the law

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Defining the formless: Customary law in the Pacific

Grant Follett

follett-customary-law150-picAn anthropologist and a lawyer walk into a bar. The bartender thanks them for their custom, thoroughly confusing everyone. While this joke shows why legal anthropology has never taken off as a source of comedy, it also illustrates the difficulties in applying custom in a legal setting. Lawyers, needing a term to describe the way colonised societies regulated their affairs through custom and practice, rather than through state law,1 used ‘customary law’. As a term, this has been called ‘imprecise’2 and ‘self-contradictory.’3 Some argue that:

[f]ormulated as an explicit rule [customary law] is structurally, behaviourally and logically opposed to what in social science terms emerges as an unarticulated but observable pattern of behaviour, albeit eventually manifest by cumulative social assessments of approval or disapproval.4

This article describes how ‘customary law’ or ‘custom’ has been defined in Pacific legislation, and how those definitions have been applied by the courts. Of course, this is a far cry from analysing how custom actually works. To many people living lives governed by custom, the way legislation written in far away capital cities defines the concept is as relevant as the font the legislators decided to use.

(2014) 39(2) AltLJ 125


Farming the city: Urban agriculture, planning law and food consumption choices

Liesel Spencer

 Eat food. Not too much. Mostly plants.

Michael Pollan, In Defense of Food: An Eater’s Manifesto

How people live within their homes is ultimately down to them and is within the remit of the autonomy of the domestic sphere.

Yvonne Rydin, The Purpose of Planning: Creating Sustainable Towns and Cities

(2014) 39(2) AltLJ 120


Pro bono partnerships in environmental law: Enhancing outcomes for universities and CLCs

Evan Hamman, Rowena Maguire and Judith McNamara

hamman-pro-bono-environmental-law-150Enhancing Outcomes for Universities and CLCs

The changing nature of Clinical Legal Education

Defining Clinical Legal Education

Clinical Legal Education (‘CLE’) is a pedagogical tool used by law schools to introduce social considerations to a student’s education.1 At its heart, it is concerned with bringing the law out of the classroom and into the real world. In doing so, it allows students to acquire an appreciation of the social context in which the law operates. In Australia, CLE is distinguished from other experiential learning such as Practical Legal Training (‘PLT’) and Work Integrated Learning (‘WIL’). As the Council of Australian Law Deans (‘CALD’) recently noted:

[CLE’s] emphasis on meeting the diverse and complex needs … of real clients … places it well beyond the vocational focus of PLT and WIL, which can limit themselves to a ‘how to’ approach to practising law.2

Its ultimate objective is to move legal education beyond legal principles and rules to a focus on issues of justice.3

(2014) 39(2) AltLJ 115


Operation Sovereign Borders: The very real risk of refoulement of refugees

Susanna Dechent

sovereign-borders-dechent-150The very real risk of refoulement of refugees

In the lead-up to the 2013 federal election, both Labor and the Coalition were keen to be seen to be tackling the ‘refugee crisis’ with drastic measures to stop the boats carrying asylum seekers from reaching Australian shores. On 30 July, the Labor government published full-page newspaper advertisements across the nation warning that people who come to Australia by boat will not have their protection claims assessed in Australia.1 To ensure high impact, a photo of a crowded boat carrying asylum seekers, and a deterrent message translated into several languages, were also disseminated in a number of target countries in the region. The (then) opposition, in turn, announced its ‘Operation Sovereign Borders’ policy (‘OSB’) to ‘establish a military-led response to combat people smuggling’.2 Among its arsenal of weapons were legally questionable measures such as ‘rigorous’ offshore processing and ‘turning back the boats’ to deny the people smugglers ‘a product to sell’.3

(2014) 39(2) AltLJ 110


Child Protection Matters In The Northern Territory

Nicholas Petrie and Louise Kruger

Although the policy giving rise to the Stolen Generation ended over 30 years ago, the removal of children from Aboriginal families remains a live issue for Australian governments. This is particularly so in the Northern Territory (‘NT’), where the 2007 publication the Little Children are Sacred Report forced the sensitive issue back on the national agenda. A great deal has been written on appropriate state intervention where children have been subject to, or face a real chance of, abuse or neglect. Much of this literature, both Australian and otherwise, suggests that alternative dispute resolution (‘ADR’) in the form of family group conferencing (‘FGC’) is one way to produce positive child protection outcomes for children and families.

(2014) 39(2) AltLJ 104


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