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

Editors for this issue: Melissa Castan

Pages 79 to 142

Changing Public Interest Law: Overcoming the law's barriers to social change lawyering

Paula O'Brien

Social change lawyering seeks to address the systemic causes of the problems faced by the most economically and socially disadvantaged people in our society. Social change lawyering has not been the focus of public interest law activities in Australia. Instead, public interest law has been concerned with assisting individuals and groups to vindicate their existing or new legal rights. This article argues the prevailing ‘access to justice’ orientation in public interest law results, in part, from the liberal understandings of the law and lawyer which are a feature of our legal system. These notions create strong resistance to the goals and methods required for social change lawyering.

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Article

Advocacy on Trial

Lizzie O'Shea

Lawyers often try to create a moral distance between themselves and the behaviour of their clients. This is partly a creation of the adversarial system, which encourages excessive partisanship at the expense of a commitment to historical truth and morality. As such, the law sometimes avoids addressing the relationship between advocacy and justice. Narrowing the moral distance between lawyer and client is the natural pursuit of an ethical legal profession.

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Article

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

Anne Hewitt and Margaret Castles

Most stakeholders in the process of legal education, including students, employers, the judiciary, the government, and the legal profession more broadly, agree as to the importance of equipping law graduates with professional skills. However, both academics and students acknowledge that the process of teaching and learning skills at law school can be a difficult one. In this paper the authors consider how professional skills teaching can be incorporated into a law degree, and consider their experiences in teaching professional skills in a tertiary context using a situational learning methodology.

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Article

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

Kaushalya Mataraaratchi and Jonathan Tyne

Pro bono representation allows individuals who would not otherwise be able to make use of legal services greater access to justice, particularly in the context of contested litigation. Although practitioners acting pro bono may not be motivated by financial gain, the circumstances of the retainer may nonetheless create liability for solicitor-client costs. The implications are that costs may be recoverable from another party to litigation even where the relationship between a lawyer and a client is described as being ‘pro bono’.

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Article

When police complaint mechanisms fail: The use of civil litigation

Tamar Hopkins

Australia’s mechanisms to investigate police do not meet international human rights standards. Substandard complaint investigations disguise the serious and widespread problem of police misconduct and leave police immune from sanction. Currently, a more effective means of achieving positive results for victims of police misconduct is through using an alternative ‘complaint’ mechanism — civil litigation. The success of civil litigation can be explained by the centrality of victims to the process as well as the independence and quality of the decision-making. For a number of reasons, civil ligation is not as widely used in Australia as in the UK and US. In the absence of effective complaint mechanisms to increase police accountability in Australia, civil litigation must be made more accessible to ordinary people.

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Article

Juvenile justice and truancy legislation: The move towards parental responsibilisation in Queensland

Terry Hutchinson, Elizabeth Dickson and Duncan Chappell

This article examines the evidence of parental responsibility provisions in juvenile justice and truancy legislation in Queensland and the drivers behind this approach. It argues that introducing blanket penalties may not be in the best interests of the individual child or their community although stiffer penalties applied judiciously may be effective. But there are more difficult issues that will not be solved by sleight of legislative hand, fines or even jailing ‘bad parents’. It argues that these tougher provisions need careful evaluation.

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Article

'Mate speak English, you're in Australia now': English language requirements in skilled migration

Laurie Berg

The last decade has seen the introduction or increase in English language thresholds across Australia's skilled permanent migration program and, in some cases, for applicants for temporary skilled visas. These increases have been achieved variously by regulatory amendment and judicial interpretation of the Migration Regulations. This article charts these trends, unpacks the policy rationales that have been offered for these increases and explores their undesirable and unintended consequences.

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Article

Why don't I get the joke? Prison rape in the public discourse

Craig Minogue

While there appears to be a common acceptance of crimes of violence against prisoners, there can never be a situation where it is morally acceptable to rape a person, regardless of their character or standing in the community.

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Comment

The criminalisation of asylum seekers

Jo Coghlan

Recently announced changes to how and where Australia processes asylum seekers aim to distract voters from the federal government’s failures to fulfill its legal obligations to asylum seekers. Offshore processing is a poor legal and political response to the increasing numbers of asylum seekers seeking protection in Australia. It is also a poor response to the High Court and Amnesty International’s concerns at how the federal government appears to be criminalising asylum seekers.

Price: $4.40
Brief

Children's rights in South Africa

Leanne O'Donnell

South Africa has recently enacted a progressive Children's Act which seeks to address the challenging realities of life for many children. With millions of orphaned and vulnerable children attention now needs to be focussed on ensuring these children receive practical benefits from this legislation.

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Brief

A matter of discretion?

Tessa Boyd Caine

This brief examines recent law reform to the NSW forensic mental health jurisdiction. It raises the question of the reform’s effectiveness in the context of inadequate resources and poor capacity to provide appropriate support for patients in the community..

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Brief

Asia Pacific: Politics, ethnicity and Islam in Malaysia

Julian C H Lee

This article examines trends in Malaysia’s civil courts which have, in cases of perceived conflict of jurisdiction with the Syariah courts, conferred jurisdiction on the latter, especially in cases involving would-be apostates from Islam. This trend is examined against the backdrop of the sodomy trial against opposition party leader, Anwar Ibrahim, who has had rejected his appeals to have the accusations made in 2008 heard in the Syariah court, where the evidentiary requirements would likely see the case thrown out. A comparison of these conflicts of jurisdiction points toward the politicisation of religion in Malaysia and its impact on religious minorities.

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Column
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