The purpose of the article is to shine the light of disinfectant on the state of decay evident in... more The purpose of the article is to shine the light of disinfectant on the state of decay evident in Australian law schools. The article argues that law schools in Australia are controlled by structures of power that foster the rule of those at the commanding heights of a market society. At the pedagogical level the power relations that shape the agenda of Australian law schools are expressed in a form of jurisprudence that turns law into a trade school discipline. The article highlights the killing of a number of attempts in Australia to revamp law schools by developing a decentralized form of governance, and a teaching methodology that supported a critical legal education aimed at producing lawyers equipped to enhance a citizen-based democracy. The axing of the innovative law program at Macquarie University by the upper echelons of management and their academic acolytes is delineated in detail, for its tragic downfall encapsulates the triumph of the corporatist approach to higher edu...
The workplace is increasingly becoming a place where survival, let alone success, necessitates hi... more The workplace is increasingly becoming a place where survival, let alone success, necessitates higher than average performance. 1 The university has become 'survivalist, dominated by a sense of the duty to endure rather than to enjoy'. 2 * Professor, Griffi th Law School, Griffi th University. Thanks to Kenneth McKinnon, Waikato University, for his generous and helpful insights on a previous draft of this paper.
Why should wait for some days to get or receive the ethics and legal professionalism in australia... more Why should wait for some days to get or receive the ethics and legal professionalism in australia book that you order? Why should you take it if you can get the faster one? You can find the same book that you order right here. This is it the book that you can receive directly after purchasing. This ethics and legal professionalism in australia is well known book in the world, of course many people will try to own it. Why don't you become the first? Still confused with the way?
ABSTRACT A lawyer's behaviour derives from their own principles and values, the norms of prof... more ABSTRACT A lawyer's behaviour derives from their own principles and values, the norms of professionalism, the professional conduct rules and the common law. In the past, much emphasis has been placed upon the first two sources as they formed the basis of self-regulation and influenced the development of legal ethics. Recently, the Australian codes of ethics explicitly detail an increasing range of duties which might reasonably have been thought to be implicit characteristics of sound ethical values and professionalism, for example, a duty to be civil, and an explicit prohibition against harassment, intimidation and bullying. Such additions have been deemed necessary as a response to increasing concerns about lawyer incivility and empirical reports detailing high levels of harassment, intimidation and bullying within law firms. We suggest that the expansion of duties in the codes raises intriguing and troubling questions: Does the expansion of duties in the codes suggest that lawyers, as a group, need rules to act virtuously and professionally? And if so, has this always been the case, or have external factors such as an increasingly complex environment, the rise of commercialism and an increasingly diverse profession, changed the way lawyers see themselves both as moral agents and as professionals?
This article is concerned with issues of the health and wellbeing of Australian law students. Ove... more This article is concerned with issues of the health and wellbeing of Australian law students. Overseas studies show a decline in the values and motivation of students who undertake law leading to a significant risk to mental health. The authors are currently engaged in research that seeks to determine whether Australian law students experience a similar decline. The hypothesis of this study is that law students experience a decline in life satisfaction and wellbeing that correlates with a decline in intrinsic motivation and values. To date, their preliminary demographic survey of the 2004 first year cohort at the University of Western Australia (UWA) has yielded a picture of the first year law student that raises questions about her future wellbeing. This article reports on this preliminary demographic and reflects on the implications of our hypothesis in the current tertiary climate. The conclusion is pessimistic: the authors are of the view that the likely increase in student numbers in law, and the consequent pressures brought to bear on Australian law schools, are likely to have a deleterious effect on Buttercup, the quintessential first year student, in both the short and the long term.
This article is concerned with the socio-legal enterprise. Socio-legality is used in this article... more This article is concerned with the socio-legal enterprise. Socio-legality is used in this article in a broad sense to refer to that 'branch of legal scholarship that uses the methods of the social sciences to throw light on the workings of law and legal institutions'. The questions I seek to address are: Why is it that socio-legality has been the site of conflict in a number of law schools? Why is it that those conflicts have been so traumatic for those caught in them? And why is it that, despite the promise of socio-legal scholarship, that promise has been so difficult to realise?
My purpose in writing this article is to examine the argument that the current legislative protec... more My purpose in writing this article is to examine the argument that the current legislative protection of industrial designs should be supplemented or replaced by an unfair competition regime. Such respected commentators as Professors Ricketson and Lahore have advocated the inuoduction of an unfair competition regime in the context of design protection.' In this article, I agree that the introduction of an unfair competition regime could potentially not only provide assistance in overcoming the current difficulties of design protection, but could also allow a more flexible approach to protection in the face of increasing technological change. My contention is that the current scheme of protection is ineffective, largely because of the assumptions and values that the legislation is based upon. Because these assumptions and values are so central to the scheme of intellectual property protection in general, and designs protection in particular, alternative reform proposals, such as simply amending the designs legislation, or adding new mi generis regimes to supplement it,* would continue to have little effect. I argue that the introduction of an unfair competition regime would be problematic, not least because of the resistance to such a regime on the grounds of certainty and competition, but that this resistance, at least in the context of design protection, may be misplaced. I have structured this paper by firstly examining the purposes of, and the background to, legislative design protection. I then proceed to examine three assumptions that underlie the legislative scheme and explain the origins of those assumptions. I then argue that these assumptions are no longer valid, and proceed to examine * LLM (Tas), Senior Lecturer, University of Western Australia. My thanks to Professor Sandra Berns, Ian Campbell, Colin Thomson and Michael Tilbury for reading and commenting upon drafts of this paper. S Ricketson, 'Reaping without sowing; unfair competition and intellectual property rights in Anglo-Australian law' (1984) 7 UNSWJ 1; J Lahore, 'Designs and Petty Patents: A broader reform issue' (1996) 7 AIPJ 7. Such as a utility patent regime. See S Ricketson, 'Towards a rational basis of the protection of indusmal design in Australia' (1994) 5 AIPJ 193.
Abstract Over the past few years, there has been increasing concern about the high incidence of d... more Abstract Over the past few years, there has been increasing concern about the high incidence of depression, anxiety, substance abuse and suicide amongst members of the legal profession. Although the factors implicated in lawyer distress are said to be both structural and individual, the overall tendency in addressing lawyer distress has been to focus on the individual. In other work, I have sought to show that this focus may be unfortunate, tending to render structural issues invisible and to pathologise certain responses and behaviours. My specific interest in this paper is the impact of unethical behaviours — such as bullying, discrimination and harassment — on wellbeing. The paper is written in response to three recent Australian reports which have found widespread incidence of such behaviours in legal workplaces. These are not the only reports to evidence the dysfunctional nature of legal practice in Australia; indeed, the problem has been described as ‘pandemic’. Although structural factors in legal practice, such as billable hours, heavy workloads and stress have long been implicated in the ill-being of lawyers, relatively little attention has been paid to the physical and psychological effects of unethical behaviours. Drawing from a considerable body of literature that examines the impact of such behaviours on the health and wellbeing not only of victims, but of perpetrators and third parties, I pose the question: is unethical behaviour in the legal services industry the elephant in the room in the wellbeing debate?
ABSTRACT Civility has long been considered a core value of lawyering. For some time, concern has ... more ABSTRACT Civility has long been considered a core value of lawyering. For some time, concern has been expressed in the literature about the loss of civility in the legal profession, and regulators and professional associations have sought to foster civility and to discourage, and in some cases, penalise, incivility. In particular, instances of incivility or discourteousness are increasingly linked to questions of misconduct. However, the notion of ‘civility’ is itself, often contentious, and the line between ‘robust' communication and incivility is unclear. Does civility matter? If so, when will lawyer advocacy on behalf of the client, or their strongly worded criticisms of an opponent's actions, become the subject of claims of unethical behaviour? Arguing that civility is important, this article will analyse relevant case law from Australia, the United Kingdom, the United States, Canada and New Zealand, in order to better understand contemporary conceptions of civility and to draw out principles currently being used to gauge the distinction between appropriate communications and unethical behaviour. The article finds a relatively high degree of consistency in the approach across jurisdictions. This suggests that there is, broadly speaking, a common understanding of the meaning and significance of lawyer civility. At the same time, there are relatively few cases that deal with lawyer incivility. This is somewhat surprising in light of the concerns around loss of civility in the profession.
Exceptions in the Digital Age-produced by the Attorney-General. 2 The Fair Use Paper was directed... more Exceptions in the Digital Age-produced by the Attorney-General. 2 The Fair Use Paper was directed to the question of whether fair use provisions should be introduced into Australian copyright law to replace the current fair dealing provisions. Fair dealing provisions tend to be more specific, less open-ended, and less flexible than fair use provisions. Fair use provisions, thus, provide potentially greater scope for non-infringing public uses of copyright material. This idea was not new: such reform to the Australian Copyright * My thanks to Professor Graeme Austin, who commented extensively and generously on a previous draft of this paper. My thanks also to the panel at the Conference. The original paper presented was revised in light of the helpful and insightful comments made by panel members and the subsequent discussions at the conference.
In this paper, I want to use the term ‘body’ both in regard to the bodies of individual academics... more In this paper, I want to use the term ‘body’ both in regard to the bodies of individual academics and in regard to the academic collective within the university. I wish to argue that both bodies have been colonised by aggressive neoliberal managerialism and its attendant technologies. In particular, I shall argue, borrowing from Nanni's work on imperial colonisation, that the technologies of time are core to this process of colonisation. Nanni argues that, while time is a human universal, the ways in which time is measured, perceived and conceptualised are not (2012: 6). He argues that ‘time was both a tool and a channel for the incorporation of human subjects within the coloniser's master narrative; for conscripting human subjects within the matrix of the capitalist economy; and ushering ‘savages’ and superstitious ‘heathens’ into an age of modernity (Nanni, 2012: 4). An exploration of the technologies of time thus provides a productive entry point into contemporary power s...
Abstract This paper was motivated by contemporary discussions around the ‘future of feminism’, th... more Abstract This paper was motivated by contemporary discussions around the ‘future of feminism’, the pessimism expressed as to feminisim’s continued relevance, and the work for the feminist project that remains undone. In this paper, I use a Lacanian analysis to reveal the role of the Imaginary in contemporary society. In Lacanian psychoanalytic theory, the Imaginary is the realm of mirrors, illusion, deception and binary distinctions. In recent years, we witnessed an unprecedented rise of the Imaginary with the proliferation of media, particularly digital media. Drawing upon Todd McGowan’s insights into the Lacanian Imaginary and the film The Imaginarium of Dr Parnassus, this paper seeks to explore and explain the relationship between the Imaginary and the feminine and to highlight the troubling implications of the rise of the Imaginary, particularly for the feminist project.
The purpose of the article is to shine the light of disinfectant on the state of decay evident in... more The purpose of the article is to shine the light of disinfectant on the state of decay evident in Australian law schools. The article argues that law schools in Australia are controlled by structures of power that foster the rule of those at the commanding heights of a market society. At the pedagogical level the power relations that shape the agenda of Australian law schools are expressed in a form of jurisprudence that turns law into a trade school discipline. The article highlights the killing of a number of attempts in Australia to revamp law schools by developing a decentralized form of governance, and a teaching methodology that supported a critical legal education aimed at producing lawyers equipped to enhance a citizen-based democracy. The axing of the innovative law program at Macquarie University by the upper echelons of management and their academic acolytes is delineated in detail, for its tragic downfall encapsulates the triumph of the corporatist approach to higher edu...
The workplace is increasingly becoming a place where survival, let alone success, necessitates hi... more The workplace is increasingly becoming a place where survival, let alone success, necessitates higher than average performance. 1 The university has become 'survivalist, dominated by a sense of the duty to endure rather than to enjoy'. 2 * Professor, Griffi th Law School, Griffi th University. Thanks to Kenneth McKinnon, Waikato University, for his generous and helpful insights on a previous draft of this paper.
Why should wait for some days to get or receive the ethics and legal professionalism in australia... more Why should wait for some days to get or receive the ethics and legal professionalism in australia book that you order? Why should you take it if you can get the faster one? You can find the same book that you order right here. This is it the book that you can receive directly after purchasing. This ethics and legal professionalism in australia is well known book in the world, of course many people will try to own it. Why don't you become the first? Still confused with the way?
ABSTRACT A lawyer's behaviour derives from their own principles and values, the norms of prof... more ABSTRACT A lawyer's behaviour derives from their own principles and values, the norms of professionalism, the professional conduct rules and the common law. In the past, much emphasis has been placed upon the first two sources as they formed the basis of self-regulation and influenced the development of legal ethics. Recently, the Australian codes of ethics explicitly detail an increasing range of duties which might reasonably have been thought to be implicit characteristics of sound ethical values and professionalism, for example, a duty to be civil, and an explicit prohibition against harassment, intimidation and bullying. Such additions have been deemed necessary as a response to increasing concerns about lawyer incivility and empirical reports detailing high levels of harassment, intimidation and bullying within law firms. We suggest that the expansion of duties in the codes raises intriguing and troubling questions: Does the expansion of duties in the codes suggest that lawyers, as a group, need rules to act virtuously and professionally? And if so, has this always been the case, or have external factors such as an increasingly complex environment, the rise of commercialism and an increasingly diverse profession, changed the way lawyers see themselves both as moral agents and as professionals?
This article is concerned with issues of the health and wellbeing of Australian law students. Ove... more This article is concerned with issues of the health and wellbeing of Australian law students. Overseas studies show a decline in the values and motivation of students who undertake law leading to a significant risk to mental health. The authors are currently engaged in research that seeks to determine whether Australian law students experience a similar decline. The hypothesis of this study is that law students experience a decline in life satisfaction and wellbeing that correlates with a decline in intrinsic motivation and values. To date, their preliminary demographic survey of the 2004 first year cohort at the University of Western Australia (UWA) has yielded a picture of the first year law student that raises questions about her future wellbeing. This article reports on this preliminary demographic and reflects on the implications of our hypothesis in the current tertiary climate. The conclusion is pessimistic: the authors are of the view that the likely increase in student numbers in law, and the consequent pressures brought to bear on Australian law schools, are likely to have a deleterious effect on Buttercup, the quintessential first year student, in both the short and the long term.
This article is concerned with the socio-legal enterprise. Socio-legality is used in this article... more This article is concerned with the socio-legal enterprise. Socio-legality is used in this article in a broad sense to refer to that 'branch of legal scholarship that uses the methods of the social sciences to throw light on the workings of law and legal institutions'. The questions I seek to address are: Why is it that socio-legality has been the site of conflict in a number of law schools? Why is it that those conflicts have been so traumatic for those caught in them? And why is it that, despite the promise of socio-legal scholarship, that promise has been so difficult to realise?
My purpose in writing this article is to examine the argument that the current legislative protec... more My purpose in writing this article is to examine the argument that the current legislative protection of industrial designs should be supplemented or replaced by an unfair competition regime. Such respected commentators as Professors Ricketson and Lahore have advocated the inuoduction of an unfair competition regime in the context of design protection.' In this article, I agree that the introduction of an unfair competition regime could potentially not only provide assistance in overcoming the current difficulties of design protection, but could also allow a more flexible approach to protection in the face of increasing technological change. My contention is that the current scheme of protection is ineffective, largely because of the assumptions and values that the legislation is based upon. Because these assumptions and values are so central to the scheme of intellectual property protection in general, and designs protection in particular, alternative reform proposals, such as simply amending the designs legislation, or adding new mi generis regimes to supplement it,* would continue to have little effect. I argue that the introduction of an unfair competition regime would be problematic, not least because of the resistance to such a regime on the grounds of certainty and competition, but that this resistance, at least in the context of design protection, may be misplaced. I have structured this paper by firstly examining the purposes of, and the background to, legislative design protection. I then proceed to examine three assumptions that underlie the legislative scheme and explain the origins of those assumptions. I then argue that these assumptions are no longer valid, and proceed to examine * LLM (Tas), Senior Lecturer, University of Western Australia. My thanks to Professor Sandra Berns, Ian Campbell, Colin Thomson and Michael Tilbury for reading and commenting upon drafts of this paper. S Ricketson, 'Reaping without sowing; unfair competition and intellectual property rights in Anglo-Australian law' (1984) 7 UNSWJ 1; J Lahore, 'Designs and Petty Patents: A broader reform issue' (1996) 7 AIPJ 7. Such as a utility patent regime. See S Ricketson, 'Towards a rational basis of the protection of indusmal design in Australia' (1994) 5 AIPJ 193.
Abstract Over the past few years, there has been increasing concern about the high incidence of d... more Abstract Over the past few years, there has been increasing concern about the high incidence of depression, anxiety, substance abuse and suicide amongst members of the legal profession. Although the factors implicated in lawyer distress are said to be both structural and individual, the overall tendency in addressing lawyer distress has been to focus on the individual. In other work, I have sought to show that this focus may be unfortunate, tending to render structural issues invisible and to pathologise certain responses and behaviours. My specific interest in this paper is the impact of unethical behaviours — such as bullying, discrimination and harassment — on wellbeing. The paper is written in response to three recent Australian reports which have found widespread incidence of such behaviours in legal workplaces. These are not the only reports to evidence the dysfunctional nature of legal practice in Australia; indeed, the problem has been described as ‘pandemic’. Although structural factors in legal practice, such as billable hours, heavy workloads and stress have long been implicated in the ill-being of lawyers, relatively little attention has been paid to the physical and psychological effects of unethical behaviours. Drawing from a considerable body of literature that examines the impact of such behaviours on the health and wellbeing not only of victims, but of perpetrators and third parties, I pose the question: is unethical behaviour in the legal services industry the elephant in the room in the wellbeing debate?
ABSTRACT Civility has long been considered a core value of lawyering. For some time, concern has ... more ABSTRACT Civility has long been considered a core value of lawyering. For some time, concern has been expressed in the literature about the loss of civility in the legal profession, and regulators and professional associations have sought to foster civility and to discourage, and in some cases, penalise, incivility. In particular, instances of incivility or discourteousness are increasingly linked to questions of misconduct. However, the notion of ‘civility’ is itself, often contentious, and the line between ‘robust' communication and incivility is unclear. Does civility matter? If so, when will lawyer advocacy on behalf of the client, or their strongly worded criticisms of an opponent's actions, become the subject of claims of unethical behaviour? Arguing that civility is important, this article will analyse relevant case law from Australia, the United Kingdom, the United States, Canada and New Zealand, in order to better understand contemporary conceptions of civility and to draw out principles currently being used to gauge the distinction between appropriate communications and unethical behaviour. The article finds a relatively high degree of consistency in the approach across jurisdictions. This suggests that there is, broadly speaking, a common understanding of the meaning and significance of lawyer civility. At the same time, there are relatively few cases that deal with lawyer incivility. This is somewhat surprising in light of the concerns around loss of civility in the profession.
Exceptions in the Digital Age-produced by the Attorney-General. 2 The Fair Use Paper was directed... more Exceptions in the Digital Age-produced by the Attorney-General. 2 The Fair Use Paper was directed to the question of whether fair use provisions should be introduced into Australian copyright law to replace the current fair dealing provisions. Fair dealing provisions tend to be more specific, less open-ended, and less flexible than fair use provisions. Fair use provisions, thus, provide potentially greater scope for non-infringing public uses of copyright material. This idea was not new: such reform to the Australian Copyright * My thanks to Professor Graeme Austin, who commented extensively and generously on a previous draft of this paper. My thanks also to the panel at the Conference. The original paper presented was revised in light of the helpful and insightful comments made by panel members and the subsequent discussions at the conference.
In this paper, I want to use the term ‘body’ both in regard to the bodies of individual academics... more In this paper, I want to use the term ‘body’ both in regard to the bodies of individual academics and in regard to the academic collective within the university. I wish to argue that both bodies have been colonised by aggressive neoliberal managerialism and its attendant technologies. In particular, I shall argue, borrowing from Nanni's work on imperial colonisation, that the technologies of time are core to this process of colonisation. Nanni argues that, while time is a human universal, the ways in which time is measured, perceived and conceptualised are not (2012: 6). He argues that ‘time was both a tool and a channel for the incorporation of human subjects within the coloniser's master narrative; for conscripting human subjects within the matrix of the capitalist economy; and ushering ‘savages’ and superstitious ‘heathens’ into an age of modernity (Nanni, 2012: 4). An exploration of the technologies of time thus provides a productive entry point into contemporary power s...
Abstract This paper was motivated by contemporary discussions around the ‘future of feminism’, th... more Abstract This paper was motivated by contemporary discussions around the ‘future of feminism’, the pessimism expressed as to feminisim’s continued relevance, and the work for the feminist project that remains undone. In this paper, I use a Lacanian analysis to reveal the role of the Imaginary in contemporary society. In Lacanian psychoanalytic theory, the Imaginary is the realm of mirrors, illusion, deception and binary distinctions. In recent years, we witnessed an unprecedented rise of the Imaginary with the proliferation of media, particularly digital media. Drawing upon Todd McGowan’s insights into the Lacanian Imaginary and the film The Imaginarium of Dr Parnassus, this paper seeks to explore and explain the relationship between the Imaginary and the feminine and to highlight the troubling implications of the rise of the Imaginary, particularly for the feminist project.
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