E T ALTA Newsletter NOVEMBER 2012 - Amazon...

Australasian Law Teachers Association – ABN 99 015-138-294

ISSN 1833-3052

ALTA Newsletter

EDITION TWO

NOVEMBER 2012

I am pleased to be able to write this short note to you as a Member of the Australasian Law Teachers Association. It is a great privilege for me to be able to do so at this critical time in the development of legal education in our region. There is a global challenge to legal education that we are experiencing in different countries; this calls for greater attention from legal scholars, law students and universities. May I begin my acknowledging the inspiring work of my predecessor, Professor Ros Mason, as the previous ALTA Chair. Her boundless energy and public spiritedness over the years have long impressed me. She has set a high bar for her successors and I wish her well in her ongoing contributions to legal education. She will of course remain on the ALTA Executive as the immediate past Chair. Please let me know if there is something that you think needs to be done by ALTA.

Earlier this year I returned to work in Australia after a stint of a little over four years working at the Durham Law School where I held the Chair in Company Law and contributed to the research and teaching life of a well-regarded UK law school. I taught mainly at the masters level, although I also contributed to undergraduate company law teaching and the supervision of LLB honours students; I also had a good number of PhD students to supervise. Whilst the demands of teaching were often intense, it was research that dominated as law schools readied themselves for yet another round of research rankings, the Research Effectiveness Framework (REF), which had emerged out of the previous Research Assessment Exercise (RAE). Durham had shown how a small school fortified by a strong research culture can emerge as one of the world’s leading law schools.

Australia’s own Excellence Research Australia (ERA) had to some degree been modelled on earlier British experiences. These ranking exercises have assumed a life of their own and have come to dominate almost everything taking place in UK law schools. We need to ask whether an almost obsessive concentration on research outputs has undermined the quality of legal education that we provide our students. We need to be vigilant in regard to ensuring that teaching is not relegated to a second class activity in law schools and that academic staff are able to maintain an appropriate work-life balance. The rise of academic stress levels presents a matter of concern here.

The research ranking exercise that is taking place with such vigour in the UK and Australia has seen a competition for research staff between institutions and a great increase in the level of research outputs; in both the UK and in Australia we have seen the building of impressive new law school buildings and the increasingly vigorous pursuit of external research funding. When I visited Durham in September this year I was impressed by its new law school building which had been developed over the previous four years. Similar scenes could be found in law schools in other parts of the UK, such as Leeds and Cambridge. Fee paying international graduate and undergraduate students were finding that the quality of their teaching environment has been progressively transformed. With the increasing reliance upon private funding, it is inevitable that students will expect to see some greater value for the money that they spend on their legal education.

At the same time that these developments are occurring in UK law schools, there has also been a remarkable increase in the number of lawyers who had obtained entry into the profession in the UK through courses offered by private providers and through conversion courses. The fact that the best law firms have been prepared to look for their future lawyers from non-Law graduates was perhaps not surprising as these graduate become more dependent upon the firm; with undergraduate degrees in subjects such as History and English, first class degree graduates in such non-Law subjects have become amenable to the needs of law firms which have retrained them to fit into the firm’s particular practice areas even though they may not have

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A LTA Ne ws l e t t e r

had an all-round training that a law degree is intended to provide. We may well ask what kinds of lawyers this will create. Not surprisingly, Australian admitting authorities might quite rightly ask whether the completion of conversion courses should be enough to be admitted here. We should be proud of the quality of the Australian law degree and seek to strengthen it further.

Just as we have seen a transformation in the pathways for entry into the legal profession in the UK, we have also seen a transformation in the nature of the legal academy itself. British law schools are increasingly teaching a broad range of subjects which seek to examine the comparative and international aspects of different legal fields. In this way, the traditional dominance of common law methods has declined. This has been accelerated by the increasing importance of international protocols and soft law produced by a variety of multilateral bodies such as UNCITRAL and the OECD.

Law teachers trained in a variety of legal traditions have been able to add new dimensions to the study of such areas of law. In Europe itself, this process has received a massive degree of assistance through the institutions of the European Union and the forces of harmonisation. Whilst some may regret this, it has had a transformative effect on British law schools, not least being the large number of European law scholars (Germans, Italians and Greeks, for example) found in almost every law school. This all makes one wonder how traditional laws and legal institutions will evolve in an increasingly globalised world. Equipping our students to be ready to face the global challenges of this new legal landscape will be a major challenge.

These challenges are taking place at a time when the law school itself and the well-being of its students are increasingly seen as being in trouble. We are aware of the increasing incidence in reporting of psychological stress by law students, as shown in the 2012 Special Issue of the Legal Education Review dealing with student well-being. Law students are also subject to increasing financial stress both in terms of fees and in terms of living expenses. This means that they often have little time left to devote to their studies. Law school practices in this regard in the USA have been critiqued by Brian Tamanaha in his recent book Failing Law Schools (Chicago, 2012). In Australia, we have seen Margaret Thornton’s critique of the effects of privatization upon the law schools (Privatising the Public University, Routledge, 2012).

The global financial crisis has shown that the failure of corporate lawyers to restrain the rampant risk taking in corporate governance practices which allowed the development of increasingly risky financial derivatives, questioning their ability as gatekeepers (see generally, Joan Loughrey, Corporate Lawyers and Corporate Governance, Cambridge, 2011). We need to be increasingly vigilant in regard to the pressures faced by law schools, our students and our colleagues. Whilst the pursuit of excellence drives us all, it needs to be tempered by an appreciation of the costs that may be incurred and by asking whether we are prepared to take these on. Working collaboratively and seeking advice from peers is an important means of dealing with these tensions.

Professor Roman Tomasic

ALTA Chairperson

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Having two lead columns in this edition in some ways represents the handing of the baton of Chair of the Australasian Law Teachers Association on to Professor Roman Tomasic, University of South Australia. The changeover process started with the election of Roman as the incoming Chair at our AGM in July at the University of Sydney. And as I indicated at the AGM when congratulating Roman on his appointment that it is good that a senior member of our association has stepped up to undertake this role. Roman brings many years experience as a scholarly academic and as an academic leader – not only within Australia, but more recently in the United Kingdom where he also has played a role in the Society of Legal Scholars.

Across the academia, there are increasing pressures on individuals to deliver measurable outcomes in research and teaching. Fortunately for professional associations such as ALTA, academic position descriptions still retain the element of ‘service’, to the university, profession and community. I encourage members to develop this element of their curriculum vitae (which Wikipedia advises me can

be loosely translated as ‘[the] course of [my] life’). Across an academic career, this may encompass contributions through membership of School/Faculty/University committees. I encourage you also to consider membership of sector-wide committees relevant to the legal academy.

ALTA provides a number of opportunities for such service to a regional association. Depending on your current focus (and across a career, this often evolves), you can join a community around your particular area/s of research through the Interest Groups. On the opening day of the 2012 ALTA Conference, conveners met with members of the Executive to discuss ways in which Interest Groups can build links between their members. One strategy for conveners to explore is the increased opportunity provided by the new ALTA web site for Interest Group Discussion Forums and for promoting events.

Another opportunity for service to the broad community of law teachers and legal scholars is to be your School or Faculty representative for ALTA. This plays an important communication role both about developments at your university of interest to members generally – as well as to your colleagues about ALTA conferences, research series, awards, publications etc.

Service contributions can also be made to ALTA’s key activities – assisting with the annual conference as a host institution; refereeing papers for JALTA and LER; helping judge best conference papers.

Finally, but by no means least, ALTA provides an opportunity to serve through the General or NZ Executive. These boards benefit when they bring together a broad range of skills and interests. Just some of the attributes that strengthen these teams are an interest in one or more of the following:

Strategic leadership for law academics as a community

Research – for example how best to assist the professional development of legal academics as well as how best

to assist with the dissemination and impact of research

Learning and teaching in law at tertiary level – for example how to build communities of practice across our

region to share responses to common issues facing our students and our colleagues

Running an association – including the communication, administrative and financial aspects underpinning a

professional association.

So as you can see, ALTA provides some unique opportunities for service within our discipline – and to strengthen the ties that bind us together as a professional body which represents the interests of law teachers in Australia, New Zealand, Papua New Guinea and the Pacific Islands. In the process, you will experience not only professional development as an academic, particularly through interacting with peers from other institutions, but also the building of friendships that will make your course through life more enjoyable.

As a member of the General Executive as Past Chair, I will continue to focus on improving the connections between members in the law school and business schools across Australia, New Zealand and the South Pacific. I will continue to look for ways that

Outgoing Chair’s Report-

Professor Rosalind Mason

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ALTA can encourage members to look beyond our region to draw insights from legal educators in other parts of the world. Our roles as academics mean that we are part of a global scholarly community. Universities were one of the first sectors to connect around the world through the internet and this put academics in touch with researchers around the world. A local innovation, AustLII, has put the world in touch with legal materials from our region and also played a role in improving access to legal information across the globe. Keeping our own horizons broad and thinking beyond our jurisdictional boundaries is also important for us because our graduates are increasingly likely to work for international law firms and globalised businesses or to advise on international issues for their domestic clients.

Meanwhile, I encourage members to take advantage of the valuable connections that ALTA provides for us within our region – through our annual conference, our interest groups, the ALTA web page and this newsletter.


Immediate Past ALTA Chairperson

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67th Annual ALTA Conference at The University of Sydney Recap ... .................... 6

Australian National University to host 68th Annual ALTA Conference .................... 8

New Zealand Executive Update………………………………………………... .......... 10

CCH-ALTA Best Conference Paper Award ………………………………………….. 11

LexisNexis-ALTA Award for Excellence and Innovation in the Teaching of Law.... 12

2012 ALTA Institutional Members……………………………………………………....13

Current ALTA School Representatives ………………………………………………. 14

ALTA School Representatives Reports………………………………………………. 15

AAL/ALTA 2012 Perth Roundtable .................................................... .................... 16

Staff Profile: Professor Roman Tomasic……………………………………………... 18

Staff Profile: Associate Professor John Luluaki………………………………………. 20

Legal Research and the Work of the Courts and the Legal Profession .................. 21

2012 Sino-Australian Law Deans Meeting ......................................... .................... 25

2012 ALTA Academics with Disabilities Meeting ............................... .................... 26

Publications included in your ALTA Membership;

ALTA Law Research Series (ALRS)…………………………………………... .. 27

Journal of the Australasian Law Teachers Association (JALTA)…………...... 28

Legal Education Review (LER)…………………………………………………...29

Legal Education Digest (LED) …………………………………......................... 30

ALTA Key Agency Reports;

Council of Australian Law Deans................................................................... . 34

Law Council of Australia....................................................................... .......... 35

Australian Academy of Law............................................................................. 36

Association of American Law Schools ........................................................... 37

International Association of Law Schools ....................................................... 39

Interest Group Conveners........................................................................ .............. 41

Obituary- Vale Professor Harold Ford AM ......................................... .................... 45

Obituary - Professor Tom Cain AM .................................................... .................... 47

Obituary - Professor David Gardiner AM ........................................... .................... 48

The 2012-13 ALTA Executive................................................................................. 50

Contact ALTA..................................................................................... .................... 51

In This Issue

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Sydney Law School hosted the 2012 ALTA Conference held 1 - 4 July at Sydney Law School. It has been over two decades since the University of Sydney last hosted this conference. Since that time tremendous changes have taken place in higher education and training and more specifically in legal education, the legal profession and in the legal services marketplace. Two major forces of change witnessed over this period include rapid changes in technology and the impact of globalisation. These forces have impacted on how law teachers teach, what they teach and the expectations law students and the marketplace have of our law schools. These changes and impacts were clearly reflected throughout the conference sessions and highlighted in the overarching theme of the conference: Legal Education for a Global Community.

The 2012 ALTA Conference commenced with a welcoming reception on Sunday night. Professor Gillian Triggs, then Dean of Sydney Law School, welcomed delegates to the conference and had the additional pleasure of showing off the magnificent new Sydney Law School Building.

ALTA 2012 boasted a swag of eminent speakers. The opening plenary session chaired by Professor Gillian Triggs, commenced with the Welcome to Country delivered by Donna Ingram and was presented by the Hon. Kevin Rudd. In attendance at this opening session was a visiting delegation of 23 Law Deans from across China; a fitting audience for Mr Rudd’s insightful and articulate discussion on the impact of globalisation. Mr Rudd emphasised the profound impact of globalisation throughout society:

…globalisation now affects everything that we do, in every sphere of what we do….in Asia we find the full bloom of globalisation in the 21st century…[t]here is I believe a large opportunity for this country, Australia as the western country within Asia, to become a greater and greater repository of the knowledge of Asian law and the knowledge of Chinese law in particular….[i]n the realm of international public law…there is a wider argument for Australia’s engagement as well, in the unfolding doctrines of international humanitarian law and most controversially in the area of the Responsibility to Protect.

Mr Rudd also emphasised the importance of bridging language and cultural differences and the imperative of establishing a commonality of understanding in transnational exchange. Mr Rudd entertained and privileged the audience by showing his own skills in the Chinese language.

The opening plenary session was followed by sixteen concurrent sessions held throughout Day 1 of the conference covering the following areas of discourse: Getting Started on the Publication Ladder; Blended Learning and Technology; Labour Law; Competition and Consumer Law; Environmental Law; Ethics and The Legal Profession; International Law; Tort and Contracts; Indigenous Inclusion in Legal Education; Law Curriculum, Clinical Legal Education; Criminal law, Family Law & Social Justice: Property Law, Comparative Models in legal Education; Legal Theory & Law in Context. The working day concluded with a closing plenary session on Legal Education for a Global Community, chaired by Professor Elisabeth Peden and presented by the Hon. Justice Allsop, President of the NSW Court of Appeal and the Hon. Justice Slattery from the Supreme Court of NSW. Their Honours stimulated the audience with a discussion of contemporary challenges in legal practice and highlighted some of the

67th Annual ALTA Conference-

The University of Sydney

Photo A

Photo C Photo B

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challenges brought to bear by technology on judicial decision-making and legal scholarship. The first day of the conference concluded with the formal conference dinner held at the NSW Museum of Contemporary Art. The master of ceremonies for the evening was the witty Craig Reucassel. The Hon. Virginia Bell, High Court Justice, presented a thought-provoking keynote over a sumptuous dinner.

The second day of the conference opened with a plenary session on Innovations in Teaching Lawyering Competencies for a Global Community. The session chaired by Dr Rita Shackel, Associate Dean (Learning and Teaching) at Sydney Law School, heard Professor Michael Coper (ANU College of Law) and Professor Mitch Bailin (Georgetown University Law Center) share their insights on current and future challenges facing law schools in equipping law graduates with the knowledge and skills necessary for modern day practice and the demands of a contemporary global legal services marketplace. This session set the scene for Day 2 of the conference and a further thirteen concurrent sessions that covered the following areas: Online Publishing; Legal Education Reform; Legal Research & Communication; Constitutional Law; Law and Computers; Revenue Law; Indigenous People & the Law; Law & Teaching Approaches; Law & Medicine; Company Law; Legal History; South Pacific Legal Studies; Law for Non Law Students. The formal part of the day closed with a plenary session by the Australian Academy of Law on the linkage between research and the work of the courts and the legal profession. This session was chaired by the Hon. Peter Rose QC and presented by the Hon. A/Justice Ronald Sackville, Dr Sarah Pritchard and Professor George Williams. Following another full day of stimulating and thought-provoking discussion, delegates enjoyed a casual conference dinner held at St Paul’s College on the grounds of the University of Sydney. Professor Rosalind Mason, Chair of ALTA, was the Master of Ceremonies for the evening and Professor Rosalind Croucher, President of the Australian Law Reform Commission shared some of her personal experiences as the evening’s keynote speaker.

The final day of the conference included further concurrent sessions on: Best Practices in Clinical Legal Education; Issues in Legal Education; Tort and Contract; Revenue Law; Criminal Law; Student Well Being & Support.

In 2012 the ALTA Conference also saw a meeting of the South Pacific Legal Studies Group and the Inaugural Meeting of Academics with Disabilities.

Overall the conference was deemed to be a wonderful success bringing together more than 170 delegates from around the world including legal educators, researchers and publishers from Australia, New Zealand, Fiji, Papua New Guinea, USA, Hong Kong, Russia, Singapore, South Africa and Spain. It proved to be a stimulating, thought provoking and cutting edge exchange with more than 110 papers presented across 36 disciplinary interest groups and workshops. The ALTA conference again proved its importance as a key forum for exchange and action amongst legal academics with shared interests. For example, in 2012 two interest sessions were held during the conference on Criminal Law. Together, they demonstrated the interest in research and teaching in criminal law across Australia and New Zealand. Participants in these sessions (chaired by Mr Kris Gledhill and Dr Arlie Loughnan) commented on the absence of a criminal law (as opposed to Criminology) conference in the region, and resolved to establish a list serve to build a criminal law teaching/research community, and to keep each other informed about interesting developments, workshops and conferences, visiting scholars and any other relevant matters. This example demonstrates the role that the ALTA conference plays as a catalyst for ongoing and renewed exchange between legal scholars in the region.

The ALTA 2012 Conference could not have been such a huge success without the hard work of a large number of people. Special thanks go to the staff of Sydney Law School, in particular, Professor Gillian Triggs, the conference organiser Chloe Wyatt; members of the ALTA Conference Organising Committee: Associate Professor Fiona Burns, Dr Arlie Loughnan, Ms Susan Shearing, Mr Anthony Cousins (Treasurer) and Dr Rita Shackel. Thanks also go to all the interest group convenors, session chairs and paper presenters. The conference would not have been as successful without the support of its sponsors: LexisNexis (Gold Sponsor); The Law Society of New South Wales and The Federation Press (Silver Sponsors); and Palgrave MacMillan; Oxford University Press; Thomson Reuters, Cambridge, CCH; SEE SAW; and Angus (Bronze Sponsors).

We look forward to ALTA 2013 to be hosted by the ANU College of Law.

Dr Rita Shackel

2011-2012 Conference Secretary

Photo A: The Sydney Law School Building

Photo B: The Hon. Kevin Rudd and the 2012 ALTA Conference Organising Committee

Photo C: The Hon. Kevin Rudd speaking to the Chinese Law Dean Delegation

Photo D: The Hon. Virginia Bell speaking at the Formal Dinner

Photo D

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68th Annual ALTA Conference-

Australian National University

Sunday 29 September - Wednesday 2 October 2013 ANU College of Law , Australian National University Canberra We are delighted to announce that the ALTA Annual Conference 2013 will be hosted by and held at the ANU College of Law, Australian National University, Canberra, from Sunday 29 September 2013 to Wednesday 2 October 2013. THE DATES Please note that this is a departure from the usual mid-year winter dates (typically the first week of July) that have become customary in recent years, though it is a reversion to some instances of past practice. The spring dates have been chosen for a number of reasons. First, the dates fall in Universities Australia's second semester 'common week' break; though not all universities observe this, it is the week in which the greatest number do. Secondly, it is widely believed that first semester marking and second semester preparation commitments have seriously inhibited mid-year attendance in recent years; we think that the later mid-semester timing will allow greater participation (even for those with teaching commitments, which, with reasonable notice, may, in some cases at least, be capable of readjustment). Thirdly, spring in Canberra is as delightful as winter is forbidding (with the timing also coinciding with Canberra's spectacular Floriade festival)! THE THEME The conference theme will be announced shortly, but is likely to revolve around a re-examination of our core values as law teachers, legal scholars and legal researchers. What are our core values? Have we articulated them coherently? Should we? Can they provide a reference point for some of the dilemmas and challenges we face in achieving our aspirations for academic excellence, relevance and impact? Are they important in giving meaning to what we do? Do they have a place in an environment that is increasingly light on resources and heavy on regulation? Can they provide a framework for us to articulate and better understand the role that law schools, law teachers and legal scholars can play in adding value to society? PLAN NOW! As you wait excitedly for the crystallisation of this theme, announcement of keynote speakers, and finalisation of the organising committee, we strongly encourage you to put the dates in your diary - Sunday 29 September 2013 to Wednesday 2 October 2013 - and to plan ahead now for the opportunity to showcase your research and test your ideas, and to engage in dialogue with others about theirs. The ALTA Annual Conference is potentially a wonderful opportunity to support, strengthen and promote our discipline and to work together on the great collective endeavour of Australasian law schools, law teachers and legal scholars - and all the more so in the context of a broad theme that asks us to reflect on why we are here.

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THE HOST The ANU College of Law is delighted to host the ALTA Annual Conference 2013. The College is Australia's 7th oldest law school, following the establishment from the 1850s onwards of a law school in each of Australia's state capitals. It was founded in Canberra, the national capital, in 1960, as the Faculty of Law of the Australian National University, though it existed in another form from the 1930s as the Canberra University College, which awarded its degrees through the University of Melbourne and of which Sir Robert Garran was a prominent founder. Today, the ANU College of Law prides itself on its leadership in legal research and legal education, nationally and internationally, and is a large and diverse institution that not only engages in the core educational and research activities of a modern law school, but also reaches out into the legal and wider community in a multitude of ways, for example by hosting a range of external bodies such as the National Judicial College of Australia and the National Centre for Indigenous Studies. It is well known for its ethos of commitment to law reform and social justice, and for its promotion of this ethos across the sector. THE INVITATION As Dean of the ANU College of Law until the end of 2012 and thus current President of ALTA for the purpose of the conference, Professor Michael Coper is delighted to set the organisation of the conference in motion. In a seamless transition, his successor as Dean in 2013, and thus as President of ALTA for 2013, the esteemed Professor Stephen Bottomley, is equally delighted to take over the task from the beginning of next year. We both warmly invite you all to start to think seriously about joining us in Canberra in the spring of 2013 - the year of Canberra's centenary!

Professor Michael Coper

Dean, ANU College of Law

Current ALTA President

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2012 has been a year of big announcements for Law Schools in New Zealand with two of ALTA’s institutional members seeing significant changes to their accommodation. Te Piringa Faculty of Law at the University of Waikato announced that it will be moving to new purpose built premises in 2015 with the University’s Council approving a new building for both the Law Faculty and elements of the Faculty of Management earlier this year. The building will feature a striking rectilinear five-storey office tower with vertical sunshade vanes referencing the tukutuku reed panels in a traditional meeting house. The tower will be linked at ground level to the existing Management building and will provide accommodation for the Law Faculty and its new law research centres – the Māori and Indigenous Governance Centre and the Centre for Environmental Resources and Energy. The ALTA New Zealand Executive looks forward to Waikato hosting the annual ALTA conference there in due course!

The Law School at the University of Canterbury was also the subject of a number of announcements as it continues its recovery from the 2010 and 2011 earthquakes. For 2013, the Law School will be moving to temporary (on campus) accommodation while the Law Building undergoes improvement. This reflects a desire of the University Council to ensure that all UC buildings are of the highest possible earthquake strength (far above the minimum required). Student disruption will be minimal as the temporary office space provides individual offices space for staff, meetings rooms and all the usual essentials for faculty use. The Law Library will move to purpose built accommodation in the James Hight library building.

In 2013 the Law School will return to its usual home alongside colleagues in the College of Business. 2013 will also see the creation of a new combined College of Business, Economics and Law (name to be decided). This administrative change will have little impact upon research and teaching at the school with the Law Faculty continuing to operate as a separate entity. The importance of the Law School to the future of the University has been confirmed by the University decision to approve a raft of new appointments in 2013.

On the subject of new appointments, Canterbury’s southern neighbours, the Faculty of Law at the University of Otago has recently appointed Marcelo Rodriguez Ferrere to the position of lecturer. Marcelo is a graduate of Otago and Toronto and formerly worked as a High Court Judge's Clerk in Wellington and at Chapman Tripp in Wellington. The Otago Law Faculty has also just opened the Centre for Governance, Science and Society. The interdisciplinary Centre will focus on legal and regulatory issues that new scientific developments pose for society.

2012 has been a busy year. I suspect 2013 will be even more so!

Nga mihi,

The ALTA NZ Executive

New Zealand Update

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CCH Best Conference Paper Awards

We would like to congratulate the following Winners of the 2011 CCH-ALTA Best Conference Paper Awards, who were announced at the 2012 Annual ALTA Conference, held at The University of Sydney Law School:

Best Overall Conference Paper

Winner Helen Sungaila & Peter Boulot

"A Critical Analysis of the Ongoing Regulatory Offensive on the Australia Legal Profession”

Highly Commended Jonathan Barrett & John Horsley

"Imagining the Body Corporate: Alternatives to the Orthodox Legal Conception of the Company”

Best Legal Education Conference Paper

Winner Anita Stuhmcke

“Teaching Plagiarism: Law Students Really Are That Special”

The winner of each award has received $500 AUD.

Further details on the CCH-ALTA Best Conference Paper Awards are available on the ALTA website at:

http://alta.edu.au/awards.aspx

http://alta.edu.au/awards.aspx

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Since 2008, the LexisNexis-ALTA Award has become a symbol of recognition for Excellence and Innovation in the Teaching of Law. LexisNexis recognises and rewards university teachers who demonstrate excellence and innovation in the teaching of law through:

curriculum advancement and pedagogical improvements in their courses;

engagement with students in order to achieve outstanding learning results;

innovation of learning design including the use of technology to achieve improved learning results for students.

We would like to congratulate the following 2012 Winners of the 2012 LexisNexis-ALTA Award for Excellence and Innovation in the Teaching of Law, announced at the Formal Dinner of the 2012 ALTA Annual Conference:

Major Award Winner Dr Susan Armstrong

Faculty of Law, University of Western Sydney

Major Award: Highly Commended Associate Professor Donald K. Anton

College of Law, Australian National University

Early Career Winner Patricia Perlen

School of Law, Deakin University

Early Career: Highly Commended Dr Dalma Demeter

School of Law, University of Canberra

Mentor of Teaching Excellence Penelope Watson

Macquarie Law School, Macquarie University

LexisNexis-ALTA Award for Excellence and

Innovation in the Teaching of Law

L-R: LexisNexis Representative; Dr Susan Armstrong, Major Award Winner; Penelope Watson, Mentor of Excellence Winner; The Hon. Virginia Bell, High Court Justice and Keynote Speaker; Craig Reucassel, Master of Ceremonies.

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The University of Auckland – Department of Commercial

Law

The University of Auckland – Faculty of Law

The Australian National University – ANU College of Law

Bond University – Faculty of Law

Charles Darwin University – School of Law

Curtin University of Technology– School of Business Law

and Taxation.

Griffith University – Griffith Law School

James Cook University – School of Law

La Trobe University– School of Law

Manukau Institute of Technology – Manukau Business

School, Accountancy & Law Division

Monash University – Department of Business Law &

Taxation

Monash University – Faculty of Law NEW

Murdoch University – School of Law NEW

The University of Newcastle

The University of New England – School of Law

The University of New South Wales – School of Business

Law & Taxation

The University of Queensland – TC Beirne School of Law

RMIT University – School of Accounting & Law

The University of the South Pacific – School of Law

University of South Australia – School of Commerce

University of Southern Queensland – Department of Law

Southern Cross University – School of Law & Justice

The University of Sydney – Faculty of Law

The University of Sydney – Law Extension Committee

The University of Sydney – Faculty of Economics & Business

University of Tasmania – Faculty of Law

University of Technology, Sydney – Faculty of Law

Victoria University – School of Law

Victoria University of Wellington – Faculty of Law

Victoria University of Wellington – School of Accountancy &

Commercial Law

The University of Western Australia – Faculty of Law

The University of Western Sydney – School of Law

The University of Waikato – Law School

University of Wollongong – Faculty of Law

2012 ALTA Institutional Members

Thank you for your support!

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The University of Ballarat

Business School Dr Tushar Das

Bond University Faculty of Law

Leisha Browning & Louise Parsons

University of Canberra Faculty of Law Sarah Ailwood

Charles Darwin University School of Law & Business

David Price

Curtin University of Technology School of Business Law and Taxation

Colleen Mortimer

Deakin University School of Law

Lidia Xynas & John Hannagan

Griffith University Griffith School of Law

Edward Mussawir & Merran Lawler

James Cook University School of Law

Stephen Graw & Malcolm Barrett

La Trobe University School of Law

Ann Wardrop & Keith Kendall

Monash University Department of Business Law & Taxation

Paula Gerber

The University of Newcastle School of Law

Nicola Ross

The University of New England School of Law Belinda Eastgate

The University of Notre Dame School of Law

Claire Kaylock & Teresa Somes

The University of Queensland TC Beirne School of Law

Qiao Liu & Nick James

University of South Australia School of Commerce

Jennifer McKay

University of Southern Queensland School of Law

Pauline Collins & Suzanne Donnellan

Southern Cross University School of Law & Justice

Jennifer Nielsen & Angela Adrian

The University of Sydney Faculty of Law

Arlie Loughnan & Rita Shackel

The University of Sydney Business School Patty Kamvounias

University of Tasmania Faculty of Law

Rick Snell & Jeremy Prichard

University of Technology, Sydney Faculty of Law Marilyn Scott

Victoria University School of Law

Charles Giacco & David Parker

The University of Western Australia Faculty of Law Tracey Atkinson

The University of Western Sydney School of Law

John Juriansz & Elfriede Sangkuhl

Current ALTA School Representatives

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The University of Ballarat, The Business School

Dr Tushar Das

The law team in the Business School which comprises of 6 fulltime academic staff is currently engaged in streamlining and diversifying its research into a variety of areas of law. Higher Degree Research Supervision is another emphasis by the law team and at least four HDR students are being supervised by the law staff in the Business School. One of the research projects currently being undertaken is ‘internationalisation of business law curriculum’. Inputs and any interest of collaboration are welcome. Contact person: Tushar Das ([email protected])

Curtin University, School of Business Law and Taxation

Colleen Mortimer

The tax staff took a group of 26 students on a tour of Canberra. Students visited the High Court and attended a talk with the Chief Justice Robert French, visited the Australian Taxation Office, Parliament House, Parliamentary Counsel, Treasury, Board of Tax, Tax Practitioners Board and had breakfast with the Inspector General of Tax. They were able to obtain an understanding of the tax process from initial discussions through the drafting and implementation process to the administration and review of tax legislation. The students then wrote a reflective journal of the trip.

On 18th October 2012 the school hosted a Teaching and Learning Symposium. The keynote speaker was Professor John Boyer from Virginia Tech who spoke on “Flipping the Assessment”. His talk was streamed live back to his students in America who also partook in the talk. As a Unit Co-ordinator of a unit with 2,750 students he has many interesting strategies to assessment.

Victoria Law School, Victoria University

Mr David Parker and Mr Charles Giacco

Michael Kirby Contract Law Moot Competition:

Victoria Law School hosted the second annual Michael Kirby Contract Law Moot. Over a 3 day period, 22 teams, 59 moots and

over 60 members of the legal profession and students from several law schools in Victoria and interstate participated in this

mooting competition. The event culminated with the participation of His Hon. Michael Kirby in the adjudication of the moot

final.

Specialised Aviation and Maritime Law subject:

Victoria Law School introduced a new and unique subject, Transport Law, which provides a specific focus on aviation law and

maritime law. The delivery of this subject includes guest speaker participation from leading aviation and maritime lawyers, as well

as professional development events with the Victorian Divisions of the Aviation Law Association of Australia and New Zealand

(ALAANZ) and the Maritime Law Association of Australia and New Zealand (MLAANZ).

Sir Zelman Cowen Centre:

The Sir Zelman Cowen Centre forms part of the Victoria Law School. In partnership with the Cambridge University Board of

Continuing Education, the Centre provides training, research and support to the government, judiciary, legal practitioners, court

staff and other professions associated with the legal sector. The Centre recently celebrated its 10th anniversary, including the

launch of the inaugural Sir Zelman Cowen Leadership Awards and Grants.

Reports from ALTA School Representatives

mailto:[email protected]

Edition Two 2012 16


On Wednesday 19 September 2012, Curtin University in association with the Australian Academy of Law (AAL) and the Australasian Law Teachers Association (ALTA), was delighted to host the 2012 AAL/ALTA Roundtable in the Supreme Court, Perth. The theme of the Roundtable was ‘Trends in Legal Education for Practice’. The Roundtable was very well attended with over 120 registrants.

The event was officially opened by the Governor of Western Australia, His Excellency Malcolm McCusker AC CVO QC and chaired by The Hon Robert Shenton French AC, Chief Justice of the High Court of Australia and Patron of the Australian Academy of Law.

Prestigious speakers included:

The Hon Justice James Edelman, Supreme Court of Western Australia

Associate Professor Mary Anne Kenny, Director of the Centre for Human Rights for Education, Curtin University

Dr Chris Kendall, President, Law Society of Western Australia

Speakers discussed a wide range of issues facing legal practice today including fundamental reform to the core law curriculum in Australia, balancing growth in core law education with a return to understanding fundamental legal principles; opportunities for clinical legal education; depression and anxiety in law students; and legal practice inequalities.

A strategic conversations panel consisting of The Hon Wayne Martin AC, Chief Justice of Western Australia, Dr Alison Gaines, Global Practice Leader – Board Consulting, Gerard Daniels and Professor Paul Fairall, Inaugural Head of School/ Foundation Dean, Curtin Law School concluded the event. The President of the Academy of Law, The Hon Kevin Lindgren AM QC also joined the Roundtable with Professor Jeanette Hacket AM, Vice Chancellor, Curtin University as a special guest.

In my capacity as Deputy Chair of ALTA and Chair of the Organising Committee for this year’s Roundtable, I would like to record my thanks to the following people and organisations for what was a truly rewarding experience.

First, I would like to thank the Academy of Law for the exciting opportunity to stage this event in Perth and for the encouragement that I received, in particular from its President, the Honourable Kevin Lindgren AM QC, who travelled from Sydney to be with us for the Roundtable. I would also like to thank the Hon Justice Ralph Simmonds from the Academy with whom I worked closely at the early stages of planning for this event.

Next, I would like to formally record my appreciation to the Vice-Chancellor of Curtin, Professor Jeanette Hacket AM and to the Pro-Vice Chancellor of the Curtin Business School, Professor Tony Travaglione for the support I received from Curtin University to enable this years’ Roundtable to take place in Perth.

AAL/ALTA 2012 Perth Roundtable-

Trends in Legal Education for Practice

Edition Two 2012 17


Special thanks are also due to Chief Justice Wayne Martin AC for generously making the Supreme Court available for the Roundtable.

My sincere thanks are also due to the Organising Committee – Her Honour Judge Gillian Braddock SC, The Honourable Robert Nicholson AO KCSJ FAAL and Erika Beazley from Curtin – whose tireless efforts made the event possible. It has been a pleasure for me to work with such an efficient and professional team.

Finally, I would like to thank Ros Mason and ALTA for the encouragement I received to organise this seminar as Deputy Chair of ALTA. It was a great event for all who attended and another valuable initiative in bringing the Academy and ALTA closer together.

Professor Dale Pinto

Deputy Chair, ALTA

Edition Two 2012 18


What is your current position?

Currently I am Professor of Law at the University of South Australia as well as being a Visiting Professor of Law at the Durham Law School in the UK. Since returning to Australia in March 2012, I have also served as Dean of Law at UniSA.

What is your area of legal specialty?

I am a corporate lawyer with a particular interest in the comparative dimensions of corporate law, such as comparative corporate governance and comparative insolvency law. With training in both law and sociology, I have undertaken a considerable amount of empirical field work on the actual operation of corporate law principles in practice, such as my recent work on the implementation of PRC corporate rescue laws. I helped to set up the Corporate Law Teachers’ Association and served as its president

for two years. More recently, I was the convenor of the Company Law interest group for the UK’s Society for Legal Scholars (Bristol, 2012). For over two decades I was involved in the editing of the Australian Journal of Corporate Law, the primary academic level company law journal in Australia.

When and how did you come to be an academic?

In many ways, I fell into the practice of being a legal academic and had not deliberatively planned to be a law teacher. As I have been fortunate to have long held academic research and teaching positions, I have managed to retain an interest in these subjects by seeking to refresh my enthusiasm for new areas of the law. My PhD looked empirically at the work of lawyers and in some ways, as an academic I have continued to do this in regard to commercial law.

What have been your main academic career steps?

After graduating in Law from Sydney Law School in1974, I was admitted to practice in Sydney. I worked briefly for Law & Milne Solicitors but quickly took a job with the Law Foundation of NSW where I worked for over three years. I submitted a PhD thesis at the UNSW in 1979 and then moved to the United States to work at the University of Wisconsin-Madison; there I completed an SJD degree (1985) and also worked as a Visiting Lecturer (1979-1980) and served as an Associate of the famous Civil Litigation Research Program. My relatively brief time living in the USA had an enormous influence upon me and my ideas of an academic career. I returned to work in Australia in 1981 due to the serious illness of my now deceased mother. Subsequently, I moved to Canberra (1985) to become head of the Law Discipline at the Canberra College of Advanced Education. I stayed in this position until being appointed as Professor of Law in 1989 and transformation of the College into the University of Canberra. My 15 years working in Canberra provided me with great opportunities for institution building, so that I, like many others around Austral ia at that time, moved to set up a new law school. Much is always learnt from pre-existing law schools when a new law school is set up; in this case, we learnt a great deal from the ANU; we also learnt from others (such as the late Professor Jack Goldring who was then at Wollongong after having worked at Macquarie, Canberra and the ANU) that it was possible to teach a quality law program in a variety of ways; One trivial and yet potentially hazardous issue was whether core LLB courses could be taught in a semester instead of as a year along course. After a term as Head of the School of Law I served as Chair of the University Academic Board and in 1999 was recruited to set up a new law school at Victoria University in Melbourne, where I was appointed as Dean of what was to be renamed the Faculty of Business and Law. In contrast to other universities which were moving their law schools out of the city, Victoria University moved its new school into the retrofitted old Births, Deaths and Marriages office of the State Government. There is a larger story to be told here than is possible at this time (see further: Clarke, Dictum,Vol 1 no 1, 2011 ). In late 2007, I left Australia to take up a chair in Company Law at the Durham Law School in the UK, I remained in this prestigious research intensive university post before returning to Australia for the sunshine in early 2012. In Durham, I was mainly engaged in doctoral and masters teaching in law.

What are your thoughts on teaching?

Different issues arise depending upon whether the class is an undergraduate one or a graduate one; teaching doctoral students is different once again. One needs to engage with the issues one is teaching and seek to illustrate these as broadly as possible. One also needs to engage with the students and this calls for different styles of teaching. As we all know, a small number of students can be very demanding. Law teaching has become increasingly international and global in its focus and benefits are to be obtained from teaching a subject in different countries. Where possible one should also seek to learn from others and use multi-media as much as one is comfortable with. Teaching should be research driven if it is to remain full of life.

Staff Profile-


Edition Two 2012 19

A LTA Ne ws l e t t e r What are your thoughts on research?

Research in law provides a broad variety of approaches, although most of us continue to engage in individually based research projects. The experience in working on a large research project as part of a group should be available to all, but it is stil l relatively rare. Larger projects allow you to take on broader topics and can have a greater effect. But, keeping research groups together and active is often a demanding task, requiring adequate funds for its research. However, some small group research can also be quite valuable (such as the work that Brendan Pentony and I did on insider trading in Australia); this had a significant effect on law reform. Legal research is becoming increasingly international and comparative in its effect which reflects wider changes that are occurring in the legal academy.

What are your thoughts on university involvement?

Being involved with big complex universities can take over increasingly larger parts of one’s life. This is not something for all people and sometimes it may be better to simply limit one’s engagement given the range of other demands that are made upon us. The rise of the mass university has challenged many traditional ideas and calls for the development of protective strategies for academics to help them to cope with the large number of demands upon them.

What are your thoughts on community engagement?

Universities have always been engaged in some kind of community engagement and this is something to be fostered as most of those who have gone to university are keen to share the benefits of university education more widely. Access and equity programs have become an increasingly important part of most universities; despite the size of the university sector in Australia, we still have some way to go in opening university doors to all of those who can benefit from university study.

What do you like most about your job?

The fact that I still enjoy the work after almost 40 years of. Encountering fresh faces always willing to learn is very stimulating, as is the ease with which we can engage with new ideas and to share these through teaching, research and publication.

What do you like least about your job?

The challenges facing university academics are considerable and increasing. There are never enough hours in the day to allow one to deal with the many interesting issues at hand.

If you were starting out again now, what would you do differently?

I would probably be more focussed upon my research.

What strategies do you use to maintain work life balance?

Maintaining work-life balance is essential for a life in the law; Universities are becoming more demanding upon academics and it is important that one finds time to be engaged with members of one’s family on a regular basis. Taking an opportunity to do different things can be helpful in this effort.

Edition Two 2012 20


What is your current position?

Executive Dean, School of Law, University of Papua New Guinea

What is your area of legal specialty?

Family and Child Law

When and how did you come to be an academic?

I became interested in academia after completing my undergraduate LL.B programme in 1978. My interest in legal research and teaching law were the major reasons for wanting to pursue an academic career.

What are your thoughts on teaching?

Teaching is important both for students and the teacher. In the latter regard, it allows the teacher to translate as effectively as possible ‘knowledge’ of law and legal principles. This can be very satisfying for the teacher.

What are your thoughts on research?

Research and reading up and around the legal fields of one’s research is the fuel for teaching, but publication of that research remains the most satisfying and contributes significantly to the available literature on the subject. While teachers are only heard, academic teachers must also be read.

What are your thoughts on university involvement?

To my mind, there should be no question about academic staff members being willing and available to working with the University’s or institution’s administration to discharge its overarching management responsibilities over teaching and research activities. An academic’s academic experience hinges on the corporate personality and effectiveness of the institution as a whole.

What are your thoughts on community engagement?

Engagement with the community within the fields of one’s expertise is an important social/community responsibility, a responsibility that necessarily comes with the job. It is an important way of acquitting ourselves to the community and humanity generally.

What do you like most about your job?

The autonomy which allows the academic to set his/her own agenda within which to pursue one’s own intellectual and vocational inquiry and interest.

What do you like least about your job?

Managing large classes particularly in the assessment component of teaching and assessment.

If you were starting out again now, what would you do differently?

Nothing differently, but identifying and focussing more fully on the current areas of my academic interest earlier than was the case.

What strategies do you use to maintain work life balance?

While I don’t set out to strike or maintain a work life balance, spending time with family, being involved in customary/tradi tional activities, gardening, and sometimes doing nothing at all, seem to have that effect.

Staff Profile-

Associate Professor John Luluaki

Edition Two 2012 21


Professor George Williams AO 2012 ALTA Conference, 3 July 2012

What is legal research?

I thought I had better start by clarifying what we are talking about. At a loss to easily define what legal research is, I fo llowed the path of any good law student. I googled it, which took me to Wikipedia. This put me on to the well regarded American work of Fundamentals of Legal Research by Myron Jacobstein and Roy Mersky. It defines legal research as:

the process of identifying and retrieving information necessary to support legal decision-making. In its broadest sense, legal research includes each step of a course of action that begins with an analysis of the facts of a problem and concludes with the application and communication of the results of the investigation.

This is a nice, compact definition, but still does not give much of a sense of what legal research actually is. For me, legal research describes any of a number of accepted methodologies by which people seek to better understand and draw conclusions from laws and legal systems.

Legal research can take many forms:

Doctrinal research, whereby scholars analyse legal materials such as judgements, statutes and

international conventions, remains the bedrock of much legal research, but is less dominant in the legal academy that it once was.

Theoretical research, whereby scholars analyse a wide variety of theoretical perspectives (from Foucault to

Dworkin) as they attach to law and legal reasoning, has become increasingly important. In particular, it has become commonplace in PhD and other postgraduate research to have a significant theoretical dimension to the study.

Empirical research, whereby scholars solve legal problems by methods such as interviewing participants in

the legal system or collating data about the impact of laws, is an area that is becoming increasingly important as people try to connect legal problems with the lived experience of the law.

Comparative research, whereby legal problems in one country are examined with an eye to the experiences

of other nations. The ready availability of comparative material via the Internet has led to an explosion in this type of research. My field, constitutional law, has been opened up to a much larger degree to

comparative experiences. This has been important in improving the quality of legal research, and in helping

to alleviate what can be a strong sense of parochialism attaching to Australian constitutional law.

Interdisciplinary research, whereby people solve problems with a mixture of legal, political science,

psychological and other disciplinary approaches is becoming recognised as fundamental to the future of good legal research, but as yet still has a long way to go in terms of it becoming a pervasive method of legal research across the academy.

Of course, these are descriptive of only a few methods of legal research that have a long history of use in Australia and elsewhere. Different methodologies can go in and out of fashion, and so there can be changes of emphasis, but good research tends to last and remain influential, such as Justice Sackville’s landmark work on poverty and the law in the mid-1970s.

The trend today is towards using a wider variety of methodologies to conduct legal research. This is a function of the growing size of the academy, the assistance provided by new technologies, the increasing influence of a diverse range of international

Legal Research and the Work of the Courts

and the Legal Profession

Edition Two 2012 22


approaches and the capacity for legal researchers to work in larger teams due to the availability of funding from the Austral ian Research Council.

Anti-terror law example

For example, the main focus of my current legal research is upon the anti-terror laws enacted in Australia since September 11. Those laws challenge some of the most important assumptions underpinning our legal system.

My project addresses how nations (especially Australia, Canada, India, New Zealand, the United Kingdom and the United States) can best reconcile traditional democratic processes, institutions, principles and individual freedoms with the likelihood that these laws granting war-time powers will remain in place for the foreseeable future.

I am seeking to answer specific questions of legal doctrine, theory and institutional design, such as:

Are the anti-terror laws effective in meeting their stated goals?

Do nations have sufficient checks and balances, oversight and review mechanisms to ensure respect for

values like freedom of speech?

To what extent have exceptional aspects of the anti-terror laws become normalised or applied elsewhere? Is

there a ‘new normal’ after September 11?

Has there been a fundamental, historic shift in democratic public law systems? What will be the long-term

impact on democracies of anti-terror laws?

At their heart, these questions ask how the community can best be protected from terrorism while also maintaining the democratic and human rights values and traditions that underpin good governance and the rule of law.

This project involves each of the different types of legal research methodologies I have described. It is not possible to reach considered and persuasive conclusions about our new anti-terror laws without a careful appreciation of:

the detail and drafting of the laws;

their fit within theoretical conceptions of our legal system and democracy;

evidence of how they have operated in practice; and

how this compares to the experience of other countries.

This research is supported by a Laureate Fellowship from the Australian Research Council. This has enabled me to put together a team of three full-time academics, two postdoctoral students, five PhD students and one research assistant.

It is a very different legal research project in scope and size than is normally undertaken by the academy. The size of the team is not far off that of the number of academic staff of some smaller law schools.

The project is only possible because of the availability of grant funding to legal researchers. It is an example of legal research that approaches the research model used by the sciences, whereby a team of people work together to tackle different aspects of a problem.

This project is an (albeit extreme) example of how legal research is becoming increasingly complex and turning to a wider variety of methodologies and perspectives to solve legal problems.

Problems and Impact

There is much that is positive about recent developments in legal research in Australia. However, there are also some significant downsides.

In particular, there strong forces and incentives at work that can lead to the production of legal research that is of interest to the academy, but not well suited to broader audiences.

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Some of these drivers are long-term. Universities have traditionally given the highest status in regard to research that is well regarded by our peers. Less weight has been given to research that is of use external to the university sector. For example, research that is cited widely by other academics will normally be more well regarded than research that is used by external institutions or community groups. This is also reflected in the higher weight in regard given to publication of research in academic outlets rather than outlets read by other audiences.

This in turn leads into the key measures of academic success, such as promotion, and so can have a pervasive impact upon the type of research conducted.

Deepening our understanding of the law and producing innovative and original forms of knowledge is certainly worthwhile. It is an essential part of good legal research. However, I am concerned that the Australian academy is beginning to replicate some of the problems of the US where there is a high propensity to produce legal research of particular value to the academy, but often of less value to courts and other institutions.

Unfortunately, these tendencies have been reinforced by new federal government measures of research quality

The ERA, or Excellence in Research for Australia initiative, ranks disciplines within universities on a scale of 1 to 5 according to the quality of their research. This process has been completed once, with a second round now underway. I should disclose that I was a member of the panel that undertook the ranking the Australian all schools in the last round, but am not so involved on this occasion.

This exercise is shaping how legal research is undertaken in Australia. For example, its (now abandoned) ranking of journals has affected where people submit their work, and has led to clear divisions in status between different outlets. Many of these changes are worthwhile in bringing transparency and needed focus to producing quality legal research.

It is also helping us to understand the indicators of quality legal research, such as whether the research:

represents an innovative and original take on a question;

expresses its arguments and findings with high level analysis, clarity and precision;

produces new knowledge and understandings; and

is persuasive and used by other members of the academy; and

However, one of the most important purposes of legal research is (as yet) excluded from the indicators used in the ERA process to assess research quality. It is not permissible to determine quality based upon the impact of the research on things such as government policy, legislative change and institutional behaviour.

The absence of this measure is driving institutions and academics to produce research of the highest analytical quality published well-regarded academic outlets. This research may or may not be of use or have any particular impact outside of the legal academy.

To put it simply, academics have traditionally received less credit for producing research that assists legal and other insti tutions, and for producing material in non-standard publications such as submissions (which, incidentally, may not even be tallied as an example of legal research). The ERA exercise accentuates this problem.

My argument is not that the focus should change to producing this other type of research, only that it will to be a better balance between the two.

The omission of ‘impact’ from our understanding of what amounts to excellence in legal research is of great concern. One goal of legal research is certainly to develop our knowledge and understanding of the legal system, but we ought also to be contribut ing towards better laws, more robust legal institutions and justice and equality within the community.

Who to write for?

To do this, legal research needs to be written with a view to influencing a range of individuals and institutions outside of the

Edition Two 2012 24


academy. Obvious areas highlighted in the title of the session, in that research should seek to inform the work of courts and the legal profession. Research ought to be produced in a form that judges find accessible when deciding cases about the content and direction of the law.

However, I think a focus on the courts and the legal profession is too narrow. My view is that legal research should also be written for:

parliaments: in fact, legal research can have its greatest impact through the parliamentary processes, such as

through submissions to inquiries. The greatest take-up of my own research has been from parliaments and their committees, such as in regard to the enactment of the Victorian Charter of Human Rights and Responsibilities or a myriad of changes to Australia's anti-terror laws. Few academics write for such processes, and often underestimate the impact they can have.

Law reform bodies and public inquiries: academics have a proud record of involvement in these processes,

but again I think we seriously undersell our capacity to make an influential and important contribution.

Executive officers and agencies, such as the ombudsman: people holding these offices are often greatly

assisted by legal research. In the field of anti-terror law, for example, a new Independent National Security legislation Monitor has been appointed to reporting on Australia's anti-terror laws. He has made it clear that he hopes to be greatly assisted in his role by researchers.

The community: in my field of constitutional law I think there is a special responsibility to communicate about

legal research to the broader public. The community has a right to know about our democratic processes, and legal research conducted by independent academics can play a vital role in this.

Producing legal research for such audiences involves meeting the same indicators of quality. It is no easier than producing learned articles for the review journals. However, it does involve a change of mindset in two respects.

First, the research must be published other than just in the leading academic journals. After all, let's face it, even academics can fail to read the literature in their own field. There is little likelihood that people outside of universities will have the knowledge and willingness to trawl through academic journals for material.

This needs to be overcome by academics publishing legal research in the places that will be read by people other than academics. I would typically write an article in a leading journal, and then rewrite that materials rather audiences, such as in submissions of parliamentarians and law reform bodies and the media for the general public.

Academics also need to be pragmatic in sending copies of their research to the people they want to influence. Very few academics do this, and simply hope that the research will be discovered by the right people. This very rarely occurs.

Second, the safe and easy path for academics can be to produce research that identifies problems and abstract solutions without taking the next step of indicating how this might be reflected in the text of the law or in a specific court decision. I find that people can get frustrated with legal research on the basis that it is not take the extra step of giving them specific, practical guidance on what needs to be done or what the law should say.

This can require courage, boldness and clarity on the part of academics, but it is necessary and essential if an academic wants their research to have an impact outside of the university sector.

My experience is that a healthy balance can be reached between developing legal research for the academy and for a broader ranges of users of such ideas.

Academics often like to see their ideas have an impact on law and legal policy. There is every reason to believe that this can be achieved, but it does involve developing a research strategy that caters to people outside of the academy, and being prepared to run against the grain of new government measures of what it means to produce quality legal research.

Professor George Williams AO

Faculty of Law, The University of New South Wales

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In July 2012, the University of Sydney hosted a Sino-Australian Law Deans meeting on the topic “Globalisation of Legal Services and Legal Education for the 21st Century”.

This is the third meeting of the Sino-Australian Law Deans. The inaugural Sino-Australian Law Deans' Conference was held in Beijing in July 2006, to coincide with an Australian Legal Services Mission to China. The second conference was held in August 2010 at the Australian pavilion at Shanghai World Expo 2010 and once again coincided with broader Sino-Australian discussions, this time between the Law Council of Australia and the China Law Society who signed a Memorandum of Understanding to strengthen institutional cooperation. This third meeting coincided with the ALTA Annual conference, which was also being hosted by Sydney Law School and was on the topic Legal Education for a Global Community.

The sessions were co-chaired by Chinese and Australian Deans and included speakers and discussants from both Chinese and Australian schools of law. The topics covered the broad gamut of issues surrounding globalised legal services and legal education:

Developing the Law Curriculum for International and Transnational Legal Practice

Collaborative Research among Chinese and Australian Legal Scholars

Legal Education and the Impact of Technology on Pedagogy

Student and Staff Exchanges and Transnational Legal Practice.

The day finished with registrants attending the cocktail reception of the ALTA Conference. Colleagues from the Chinese Law Schools also attended the ALTA conference, with many in attendance at the opening address of the Conference by The Hon Kevin Rudd MP.


Faculty of Law, Queensland University of Technology

2012 Sino-Australian Law Deans Meeting

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The first Academics with Disabilities meeting occurred during the Australasian Law Teachers Association Conference 2012. This first meeting was chaired by Dr Paul Harpur and had valuable contributions by leading academics with disabilities, including the Chair of the Committee on the United Nations Convention of Persons with Disabilities, Professor Ron McCallum.

The purpose of this first meeting was to decide if this group should continue to meet, and if so, in what format.

Dr Harpur started the session by giving background to his vision about an academics with disabilities group and his personal experiences in working as an academic without sight. Dr Harpur discussed the role of lawyers with disabilities groups, including one based in Victoria and another in the US.

The only Australian law society that has a disability specific law program is the Victorian Law Institute's Disability Law Committee. This Committee's activities are limited to VLI members. The Committee has published one article on the VLI website discussing the role of lawyers with disabilities.

The American Bar Association, Commission on Mental and Physical Disability Law. This is the largest lawyers with disability group in the world. The Commission on Mental and Physical Disability Law has collected statistics, which indicates that in 2011 approximately 6.87% of members report as having some disability. With over 400,000 ABA members means there are about 27,000 lawyers with disabilities in the US. The Commission on Mental and Physical Disability Law advances its agenda through running a mentoring program between senior and junior lawyers with disabilities and between lawyers and law students with disabilities.

The National Federation for the Blind in the US also runs a group for lawyers with disabilities. The NFB's body however is l imited to lawyers with sight impairments.

The US National Association of Law Students with Disabilities also plays an important role with advocacy for law students. The President of this body, Mr Patrick Dennis, provided a podcast to be used during the ALTA presentation.

To understand the role academics with disabilities have on students with disabilities, the meeting heard a pod cast from Ms Haben Girma, a very successful Harvard Law Student who has a disability.

During the ALTA Meeting consensus was reached to continue a meeting of academics with disabilities. Rather than limiting this meeting to people with disabilities, it was felt that the group would greatly benefit from academics interested in disability issues.

At the 2013 ALTA conference it is hoped that a panel could be developed to focus on issues, including:

Disability related research;

Legislative developments; and

Academics with disabilities sharing their own experiences.

Dr Paul Harpur

TC Beirne School of Law, The University of Queensland

2012 ALTA Conference-

Academics with Disabilities Meeting

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Online Publishing Session 2012 ALTA Conference, 3 July 2012 The ALTA annual conference this year had a special session dedicated to the concept of Online Publishing. The opening speaker was Professor Andrew Mowbray, Professor of Law at the Faculty of Law at UTS and Co-Director of the Australasian Law Information Institute (normally known as “AustLII”). Andrew gave an in depth analysis of what AustLII has been developing and in particular its support of Australian legal journals as back-issues and as working papers through the Law Research Series. The importance of these journals being online is that they are coded (software automatically produces hyper-links) to match up cases and legislation (plus some secondary materials such as law reform commission reports) to those referenced in the journal article. In addition, AustLII has developed “LawCite” which enables a quick and easy search of such articles and cross-links to primary materials. The second speaker was Associate Professor Terry Hutchinson from the Faculty of Law at QUT, who is a former Queensland Law Reform Commissioner and law librarian. Terry explained a number of legal issues with online publishing from copyright, to the use of subscription databases and new engines such as Google Scholar. This generated a lot of debate about why academics would want their research freely available and how it can be measured for ‘impact purposes’ for research quantum calculations. Finally, Professor Michael Adams, who is Dean of the School of Law at UWS, chaired the session, but discussed the advantages of ALTA members up-loading articles and working papers to the ALTA Law Research Series – view http://www.austlii.edu.au/au/journals/ALRS/ - there are currently 111 articles online and the process for up-loading is very easy indeed. For more information about the ALTA Law Research Series (ALRS), please visit http://alta.edu.au/alrs.aspx Or to upload a paper to the ALRS please visit http://alrs.austlii.edu.au/submission.html Professor Michael Adams Chair Online Publishing Session, 2012 ALTA Conference

ALTA Law Research Series

(ALRS)

http://www.austlii.edu.au/au/journals/ALRS/

http://alta.edu.au/alrs.aspx

http://alrs.austlii.edu.au/submission.html

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JALTA was established by the Australasian Law Teachers Association (ALTA) in 2008 as a double-blind refereed journal that publishes scholarly works on all aspects of law.

JALTA is an important initiative which supports the research endeavours of its members, in addition to ALTA’s highly regarded Legal Education Review (LER) and the Centre for Legal Education’s Legal Education Digest (LED) all of which are included in ALTA membership. The journal also appropriately reflects the prestige, maturity and development of ALTA as an organisation which now represents well over 1,000 members.

Following the publication of our inaugural “bumper” issue in 2008, the response to the subsequent issues has continued to be very strong. In 2009 we published 23 articles (out of 34 submitted); in 2010 we published 19

articles (out of 24 submissions) and in 2011 we published 13 articles (out of 19 submitted). All submissions underwent a rigorous double-blind peer review before being published.

We are now busy working on the 2012 issue of JALTA following the recently held ALTA conference and papers are under the review process as I write this note. I look forward to seeing the 2012 issue which I am sure will contain the same level of high quality papers that previous issues did.

I also look forward to meeting you at a future ALTA conference and would be happy to answer any queries that you might have about publishing in JALTA.

In closing, and most importantly, I need to extend my sincere thanks to a number of people whose collective efforts have made this journal possible. First, in addition to all members of the ALTA Executive, I would like to thank my Editorial Board colleagues for their counsel and support. Second, I must thank ALTA Interest Group Convenors and all referees who assisted us with the double-blind refereeing process. I would also like to offer my thanks to our proofreader for her exceptional work, David Brennan for his efforts in typesetting, and to CCH Australia Ltd for their generous sponsorship and continued support of the journal. In closing, I need to record a special thanks to Nathalie (‘Nat’) Poludniewski who is tireless in her work on all aspects dealing with JALTA and is always supremely organised and efficient. I can safely say that without Nat’s contributions JALTA would not be produced in a timely and professional manner. I would also like to extend a special thanks to Katherine Poludniewski (‘Kat’) for her cameo appearance in ‘holding the fort’ for Nat when she took some well-deserved leave during the production cycle of the 2012 edition of JALTA.

ALTA looks forward to continuing to contribute to the legal profession through this journal.

JALTA is now available for viewing at: www.alta.edu.au/JALTA.aspx


Editor-in-Chief, JALTA

Nathalie Poludniewski

JALTA Administrator and ALTA Administrative Coordinator

Journal of the Australasian Law Teachers

Association (JALTA)

http://www.alta.edu.au/JALTA.aspx

Edition Two 2012 29


At the Legal Education Review we are progressing well with Volume 22, with some excellent articles currently in the refereeing process for both our General Issue and our Special Issue on the teaching research nexus. We are grateful to referees who give their time without reward to support our publication. We are planning to publish on time for Volume 22 in December – ALTA members should receive their PDF copy in January.

This is the second year we have received generous sponsorship from Palgrave MacMillan, which ensures the ongoing viability of the journal, ensuring we can continue our contribution to legal education scholarship and excellence.

I am honoured to be joined on the Editorial Committee by Dr Nick James (UQ), Dr Allan Chay (QUT), Dr Wendy Larcombe (Melb), Ms Sonya Willis (USyd), Assoc Professor Donna Buckingham (Otago), Ms Anne

Hewitt (Adel), Professor Patrick Keyzer (Bond) and Dr Matthew Ball (QUT). Our administrator Alysia Saker has stayed on with the Review after finishing her LLB, which we very much appreciate.

We are also fortunate to have a strong Editorial Advisory Board, who support the bigger picture direction of the Review and often serve as referees. They are, in alphabetical order: Professor Michael Adams (UWS), Professor David Barker AM (UTS), Professor Larissa Behrendt (UTS), Professor Michael Coper (ANU), Mr Nigel Duncan (City University, London), Professor John Farrar (Waikato), Professor Richard Johnstone (Griffith), Professor Sally Kift (JCU), The Honourable Michael Kirby AC CMG, Visiting Associate Professor Marlene Le Brun (ANU), Professor Erica McWilliam (QUT), Professor Carl Monk (International Association of Law Schools), The Hon Justice Marcia Neave (Monash), Dr W. Wesley Pue (University of British Columbia), Associate Professor Simon Rice OAM (ANU), Professor Elizabeth Sheehy (Ottawa), Professor William Twining (University College, London), and Professor David Weisbrot AM (Monash).

If you have any questions about the Review please visit our website www.ler.edu.au or contact our administrator at [email protected]. Submissions for Volume 23 are open until 30 April 2013. In 2013 we will have, in addition to our General Issue, a Special Issue entitled ‘Critical Legal Education: The Way Ahead’.

Regards

Dr Michelle Sanson

Editor-in-Chief, LER

Legal Education Review

(LER)

http://www.ler.edu.au/


Edition Two 2012 30


The year 2012 is proving an interesting year for legal education particularly in England and Wales which is going through the process of a far-reaching Review of Legal Education and Training. This was a major point of interest during the Association of Law Teachers Annual Conference at Lady Margaret Hall, Oxford University at the beginning of April, a conference at which I was privileged to be able to present a paper on the same topic. The Review was the subject of a further one day conference on 12 June 2012 at the Institute of Advanced Legal Studies organised by the Society of Legal Scholars entitled ‘Facing the Future: Developing Academic Legal Education’. As this editorial is being written, law academics across Australia and New Zealand are preparing for the 2012 ALTA Conference scheduled to take place at the University of Sydney during the period1-4 July. It has

already received a great deal of advanced publicity in the media due to the fact that the opening is being undertaken by Hon. Kevin Rudd, the former Australian Prime Minister. For the Digest this edition is also special as it celebrates twenty years of its first publication this year. To mark the occasion, and with it the celebration of the foundation of the Centre for Legal Education, there is an account of its early activities contributed by the foundation Director of the Centre, Christopher Roper AM. The book review focuses on ‘At the Edge of Law’ by Andrew Francis which incorporates an account of those operating outside the normal confines of the legal profession. Again this text deals with many of topics being considered by the Review of Legal Education and Training mentioned earlier in this editorial. The topics of the articles digested in this edition reflect the widening area of subjects covered in the law school curriculum. The first article which comes within the Assessment Methods is by Hart, Hammer, Collins and Chardon and deals with the problem of being faced by law schools as to how they might effectively engage with students who are increasingly absent from the campus because of other demands upon their time, such as paid employment. This article will be of particular interest to Australian law academics as it considers the requirements of six ‘Threshold Learning Outcomes’ (TLOs) now being promoted by the Council of Australian Law Deans (CALD). Clinical Legal Education is a subject heading for two articles. In the first, Kruse takes the reader back to the 1920s and 1930s and the advent of the American Legal Realist Movement echoing Jerome Frank’s plea for the creation of ‘clinical lawyer-schools’. This is an interesting article which re-activates the 1944 ‘Llewellyn Report’ and its criticism of the appellate case method. It introduces the claim now made by supporters of the New Legal Realism Movement calling on legal scholars to supplement quantitative methods which qualitative research and linking it with the goals and methods of clinical legal education. The second item under this category is a thought-provoking article by Kosuri regarding the motive for social justice within the operation of law school clinics and espousing a more expansive and inclusive view of what clinics can do for law students. Encouraging students to develop the ability to think more creatively within a module based on the Trials of Dissenters is the topic by Mercer, Rogers and Sandford-Couch covered by Critical Legal Studies. The reaction of students to an extremely imaginative course will be of interest to all those law academics seeking new ways to teach and stimulate their students. In every edition of the Digest there is always a difficulty in classifying one of the digested articles. This was the situation with Apsel’s article regarding the development of a model for a genocide and human rights program eventually classified under Interdisciplinary Aspects (Sub-Heading – Context, Criticism and Theory). This article is principally concerned with the education of law students on the many aspects of genocide, particularly within the context of the Armenian Genocide. The article emphasises that part of the dynamic of the course is to raise new issues, integrate new research and adjust the curriculum to respond to issues which might arise in the study of genocide and human rights. There are three articles which come within the heading of Legal Education Generally. In the first, Devonshire and Brailsford present a comparative study of the quality of law teaching within New Zealand and the United Kingdom and examine programs both for the development of new lecturers’ teaching competencies and also some mandatory longer term teaching and learning programs. In the second article, Huggins, Kift and Field are concerned with the development of Threshold Learning Outcome (TLO) No. 6 (referred to in the first article mentioned above) as the self-management outcomes by law graduates in respect of learning and working independently and being able to reflect on and assess their own capabilities and performance in support of their own personal and professional development. In the third article under this category Mayson examines the perpetual ongoing tensions relating to the purpose of the qualifying law degree (QLD) within the context of England and Wales and the changes posed to professional legal training by the changes incorporated in the Legal Services Act 2007. Figley is the author of the first article categorised under Skills. This article emphasises the importance of teaching new law students how to synthesise rules, arguing that it is a critical component in training them to think like lawyers. This category also covers an article by Dickert, Herbig, Glockner, Gansen and Portack which examines the formation of legal judgments in the

Legal Education Digest (LED)

Volume 20 (2) Editorial

Edition Two 2012 31


context of legal cases decided by the German Federal Courts of Justice. This article is of interest in that is reproduced from an article not published in a law journal but in fact in Applied Cognitive Psychology. Under Students, Zalesne and Nadvorney are concerned with the fact that despite all the hard work on the part of some students and their teachers best efforts, they are unable to succeed in their legal studies because of a lack of consideration with respect to a ninth context-specific intelligence, which they propose as ‘academic intelligence’. They define this as an amalgam of cognitive, affective and social skills which they think contributes significantly to an entering student’s success in law school. Technology is the category which dominates the last three articles. The first by Kristl, is an American view of advantage which can be gained by the use of podcasting in the teaching of property law. The second article by Sayles and Te Wiata is concerned with the expansion of such technological tools in the teaching of business law. This has involved the use of teacher-student administered surveys to evaluate the effectiveness of a variety of technological aids such as the use of a Personal Response System (PRS) to facilitate student participation. In comparison to these North American experiences, the third article is based on the experience of a Transactional Learning Program developed within the Legal Practice Course (LPC) at Anglia Ruskin University, Cambridge in the United Kingdom. The program is of particular interest as it is carried out entirely online (except for an introductory lecture) and involves collaborative learning by encouraging students to share their knowledge and peer reviewing their work. As Editor, I am always impressed by the knowledge and imagination displayed by law academics in endeavouring to improve the quality and stimulate the imagination of the students undertaking their courses and participating in their programs. Emeritus Professor David Barker AM Editor, LED

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Legal Education Digest (LED)

Volume 20 (3) Editorial

As the year 2012 comes to an end members of ALTA may wish to reflect on the outcomes of the recent Association’s conference which took place in the University of Sydney Law Faculty at the beginning of July. As always there was a proliferation of papers covering a wide area of legal topics, some major plenary sessions involving the former Australian Prime Minister, Hon. Kevin Rudd, two Supreme Court of NSW Judges, the Hon. Justice Allsop, President of the NSW Court of Appeal and the Hon. Justice Michael Slattery together with what has now become an annual feature, a joint Roundtable organised in cooperation with the Australian Academy of Law. The latter featured a discussion of the topic: ‘The Linkage between Research and the Work of the Courts and the Legal Profession’ involving Hon Peter Rose, QC as Chair, with the principal speakers being the

Hon. Acting Justice Ronald Sackville AO, QC, Dr Sarah Pritchard SC and Professor George Williams AO. The Conference not only marked the end of Professor Gillian Triggs’ term as Dean of the Sydney Faculty of Law, it also brought to an end her roles as President of ALTA and Chair of CALD. This has come about because Gillian has been appointed as President of the Australian Human Rights Commission, a position in which we know she will serve with great distinction. The Conference also marked the end of Professor Rosalind Mason’s period of service as Chair of the General Executive of ALTA – four years – a year longer than any of her predecessors! She was honoured at the ALTA AGM by being appointed as a life member of the Association, as were Chief Justice Robert French AC of the High Court of Australia and the Hon Quentin Bryce, AC, the Governor-General of Australia. Professor Roman Tomasic, Dean of the University of South Australia Law School, has been elected to replace Ros as Chair of the ALTA General Executive. Although he is standing down as the Dean of the ANU College of Law at the end of this year after 15 years in the position, ALTA was pleased to welcome Professor Michael Coper as its new President. He will be succeeded in January 2013 by Professor Stephen Bottomley who will then become the new ANU Law Dean. Stephen will be presiding as President of ALTA during the time of the ALTA Conference now re-arranged to take place in Canberra at the end of September 2013. Certainly the 2012 ALTA Conference marked a period of change in the landscape of Australian legal education governance. The Digest would also like to congratulate one of our related legal journals, the New Zealand Law Society Journal –‘Law Talk’ – on the publication of its 800th Edition on 20 July 2012. And so to the contents of this edition of the Digest: The book reviewed in this issue is Getting a PhD in Law by Caroline Morris and Cian Murphy. Although it is described as: ‘A unique guide to obtaining a degree of Doctor of Philosophy of Law in the UK’, readers will discover that it will be of general appeal to anyone undertaking a Law PhD in any common law jurisdiction. As to the articles digested in this edition, suffice to say that they again represent the wide field of activity and scholarship involved with legal education. The two articles digested under the heading of Assessment Methods are concerned with disparate areas of assessment. Butler’s article deals with feedback on student performance and, as has become expected from the author, the innovative use of technology to provide an effective and efficient means of personalised feedback. Digest readers are encouraged to read how the author has achieved this by providing MP3 feedback by using a freely available and free-to-use Audacity program. In contrast Sargent, Springer and Curcio supply empirical evidence as to how formative assessments can increase learning and motivation by offering students feedback with respect to gaps between current and desired levels of performance. The study questions whether practice materials support those whose main goal is to get higher course grades rather than assisting those who wish to truly comprehend and master the content. Foley, Rowe, Homes and Tang are concerned with effectiveness of teaching professionalism in a legal clinic – categorised as the first of three articles under Clinical Legal Education. They recount their experience of conducting a pilot project involving the exposure of their students to ‘live-client’ clinics and recommend the value of such programs in providing opportunities to explore various paradigms of ‘lawyering’, together with the fact that participants reported that such a practice allowed them to find a suitable balance between autonomy and supervision. Field trips are not often covered in the pages of the Digest so that seeking a subject category resulted in some discussion before the second article was allocated under this heading. In it Higgins, Dewhurst and Watkins make out a strong case for the value of field trips in stimulating the interest of law students. As they stress i t involved a long and tiring day for both students and staff which might be the explanation for such an event being an unusual experience for a law school. As the authors conclude, field trips can provide students with: ‘An opportunity to observe the law in action, contextualise their legal theory and develop important legal and personal skills.’ In the final article under this category the author Rosenbaum describes being faced by the joint challenge of acting as a technical advisor for just one week in Togo for the purpose of establishing the free delivery of legal services by the jurisdiction’s bar association and assisting in the delivery a clinical education component at the capital’s law school.

Edition Two 2012 33


Curriculum is the basis for Galloway’s account of the James Cook University-wide refresh of its curricula with particular emphasis on the LLB curriculum by the School of Law. In this respect Galloway conducts a stimulating review of the literature relating to curriculum development and also describes how the JCU Law School explored the way other Australian law schools represented their degrees to the public in terms of the JCU refresh themes. Also it was essential that the JCU law academics took account of the tropical influence on the ongoing development of the JCU Law Degree. Legal Education Generally incorporates two articles. In the first, Cooper, Jackson, Mason and Toohey look at the impact that the emergence of the JD has had on academic standards in legal education. They found that academic standards in JD programs offered by Australian law schools varied and that overall there was only a marginal preference amongst employers for graduates with a JD rather than a LLB, and foretold that law schools will have to revise their JD curricula and how they teach JD students as compared to LLB students. The other article under this heading is yet another which involves the effects of the Carnegie’s Foundation Report: Educating lawyers: Preparation for the Profession of Law. However in this respect Holmquist takes the view that whilst the Carnegie Report is of value in emphasising the importance of practical lawyering skills, he challenges its conclusion that law schools in the United States successfully teach students to think like lawyers. What Holmquist is seeking in the article is a call for dialogue on the basis that the Carnegie Report does not go as far as it could in identifying the problems in legal education. Skills is the heading for two articles. In the first Lande emphasises the need for a practical approach to legal education with an emphasis on teaching students to negotiate like lawyers. Whilst the author deplores the distorted image often conveyed by law schools focusing disproportionately on litigation, nevertheless there is a concern that those advocating the importance of Alternative Dispute Resolution (ADR) should not themselves indulge in ‘negotiation romanticism’! This is a well-argued article in respect of the importance in teaching negotiation, particularly with regard to the use of multi-stage simulations although there is a discussion as to the complementary advantages and disadvantages of both single-stage and multi-stage simulations. The other article under this heading by Schneider recognises the reality of the appropriate selection of skills for effective negotiators. The author reviews the various labels given to different approaches to negotiation. She emphasises the fact that when trying to teach skills it is important to focus less on the labels and more on the behaviours that they actually describe. In this respect account has to be taken of the weakness of labels and the necessity for ensuring that students do not become over-reliant on the simplification that labels provide. Students incorporates two articles. In the first DeGroff focuses on how empirical research can tell us about the effect of law school pedagogy on law student learning styles. Its contents refer to the problem law teachers have in developing a more experiential teaching approach, particularly because of the constraints placed upon them by mostly being trained under variations of the Socratic approach to teaching. The article is helpful in examining the various ways in which ‘learning style’ has been defined and acknowledges the difficulty of fully capturing the concept. It concludes that the best description is that a learning style represents an individual’s: ‘Preferred way of thinking, processing and understanding information’. The other article under this heading is by Larcombe and Malkin and reviews the need to understand and support the first year experience of students commencing their study in law as postgraduates. The article incorporates a case study of the experience of Juris Doctor (JD) students undertaking their first year program at the University of Melbourne Law School. Teachers is the heading for the final two articles in this edition. The first, by Baron and Corbin, relates to a form of professionalism which encompasses a sense of public obligation. Again this is another article which acknowledges the influence of the Carnegie Report, but it also emphasises the importance of participation in the community of practice as forming the basic building blocks of social learning systems and their importance in defining competence in a given context. This is a thought provoking article which emphasises the importance of fostering a sense of belonging to the legal community as a way of encouraging law students to look for meaning in their work which may, in the long run, contribute to a healthier and happier legal profession. The second article by Sonsteng examines the development of an appropriate method for evaluating teaching and learning tools in law school courses. This is an all-embracing review of various learning styles including the use of the Myer’s Briggs Type Indicator (MBTI), the creation of the Gerald F Hess effective learning environment, and the Edgar Dale ‘Cone of Experience’ learning theory. It also advocates the benefits of collaborative learning. The article conveys a stimulating message to finish this edition of the Digest regarding the challenges facing law academics in their roles as a peer and guide to their students. Emeritus Professor David Barker AM Editor, LED

Edition Two 2012 34


At its June meeting, held immediately before the 2012 ALTA Conference, both of which were hosted by the University of Sydney, the major matters discussed were the probable impact of AQF and TEQSA on Law Schools, especially in relation to Honours and Masters degrees, how the three year minimum duration of law degrees requirement should be applied (especially in the context of ‘volume of learning’) and concerns from the admitting authorities about online teaching.

Papers were received from both Prof Margaret Otlowski (on Honours degrees) and Prof David Dixon and A/Prof Alex Steel (on Masters degrees). Comment was invited with a view to CALD adopting both papers and using them as a basis for a formal CALD proposal to TEQSA after the November CALD meeting.

CALD also received for its consideration a draft ‘Best Practices for Clinical Education’ and a set of consolidated regional reports on contemporary Australian clinical legal education programmes the

result of an ALTC funded project undertaken by a project team under Prof Adrian Evans from Monash University. The documents were referred to CALD’s Standing Committee on Legal Education to liaise with the project team with a view to presenting a final version of the documents to CALD’s November meeting for endorsement.

Prof Kathy Bowrey’s report on Research Quality entitled “Assessing Research Performance in the Discipline of Law – the Australian Experience with Research Metrics, 2006-2011” was also received. The report and its recommendations were welcomed and a specialist working group from CALD’s Standing Committee on Research and Scholarship has been established to work on them and to develop specific responses with a target date of the March 2013 CALD meeting.

Each of those matters remains on the Agenda for CALD’s November meeting to which Mr Ian Hawke, one of the TEQSA Commissioners, and Emeritus Professor Sally Walker, Secretary-General of the Law Council of Australia have also been invited. Both will address the members of CALD, Ian Hawke about a number of TEQSA issue specifically nominated by the CALD Executive (including the matters of Honours and Masters degrees in Law) and Prof Walker about closer collaboration between CALD and the profession.

Professor Stephen Graw

Deputy Chair, CALD

Council of Australian Law Deans

Edition Two 2012 35


The Committee has not met since the last report was made to the Newsletter.

The main items which have appeared for the information of the members of the Committee are:

1. Project – Rethinking law curriculum developing strategies to prepare law graduates for practice in rural and regional Australia

Information relating to this project was originally reported in the March Edition 2012 – Page 19 - of the ALTA Newsletter.

Dr Amanda Kennedy, Deputy Director of the Australian Centre for Agriculture and Law of the University of New England,

Armidale, is the project leader of a team that includes members from the University of New England (Lead), Deakin

University, Griffith University, Southern Cross University and the University of Southern Queensland. The project sought to

first understand what factors distinguish rural and regional legal practice as a career option, and then to examine how the law

school curriculum might embed strategies to expose students to, and prepare them for such career pathways. The research

aims to parallel the success of similar targeted initiatives in medical and teacher education, where the point of entry to the

profession (i.e the tertiary education and training phase) is actively engaged to form part of the solution for a growing concern

both within the legal profession, and in rural and regional communities.

The Education Committee was informed that in December 2011 the Law Council accepted an invitation to participate in this

research project which had received a $133,000 Department of Education, Employment and Workplace Relations cross-

institutional research grant. The project document is 144 pages long.

Although the Committee Members were asked to comment on the document’s first draft by 24 September of this year, I have

taken the view that it should receive greater exposure within the institutions represented on the Committee which is why I am

now reporting on it to ALTA members through the Newsletter.

2. National Competency Standards for Entry Level Lawyers – Incorporated into the Uniform Admission Rules

APLEC has developed a Discussion Paper outlining some of the issues raised by stakeholders relating to the review of

these standards to establish whether they reflect the current requirements for entry level lawyers.

3. New Zealand Council of Legal Education – Review of the Professional Legal Studies Course

The Committee received information from the Chief Executive of the New Zealand Council of Legal Education relating to this

review.

Emeritus Professor David Barker AM

ALTA Representative

Law Council of Australia-

Legal Education Committee

Edition Two 2012 36


2012 has been a year of expansion for the Academy. The highlights have been two major events. The first was a symposium which took place on the 19 April in the Banco Court of the Supreme Court of Victoria when an audience which overflowed into the upper gallery of the Court heard papers on and debated the topic: The Victorian Charter of Rights. The second was the AAL/ALTA Roundtable held in the Banco Court of the Supreme Court of Western Australia in Perth on 19 September with the topic ‘Trends in Legal Education for Practice.’ The Roundtable was opened by his Excellency, Malcolm McCuster, AC, CVO, QC, the Governor of Western Australia and was chaired by The Hon Robert French AC, Chief Justice of Australia and Patron of the Academy. Enrolments for the Roundtable had to be closed two days prior to the event owing to a ca-pacity audience crowding the court.

In addition to many other events filling the Academy’s calendar there was also an extra Roundtable co-ordinated by both the Academy and ALTA which constituted the Closing Plenary Session at the 2012 ALTA Conference at the University of Sydney Law School on 3 July.

The topic for this session was ‘The linkage between research and the work of the courts and the legal profession.’ The session was chaired by the Hon. Peter Rose QC.

The Academy now also publishes a Newsletter which has already reached 12 editions during the current year. The Academy has also co-operated with the Centre for Corporate Governance of the Department of Law, Macquarie University, and the RSPCA as a co-sponsor of a Conference on: ‘The Future of Animal Law’ held at The Mint, Sydney on 18 October. The Inaugural Academy’s Patron’s Address by the Hon Robert French AC. Chief Justice of Australia took place in Court-Room 1 of the Federal Court of Australia, Sydney on the 30 October at 5.30pm. The title of the address is: ‘Judges and the Academy – Dialogue of the Hard of Hearing.’ The address was preceded by the Annual General Meeting of the Academy.


Secretary, Australian Academy of Law

Australian Academy of Law

Edition Two 2012 37


Global Engagement Theme for Association of American Law Schools Annual Meeting January 4-7, 2013 New Orleans, Louisiana I was delighted this summer to participate in the ALTA and CALD meetings in Sydney. The hospitality I received from my wonderful colleagues in Australia was fantastic, and I learned of a number of shared challenges, particularly around issues of globalization.

I would like to reiterate my invitation to all of our colleagues in ALTA to attend the 2013 AALS Annual Meeting on January 4-7, 2013 in New Orleans, Louisiana. Participants especially interested in global topics in the legal profession and in legal education should find ample choices to pursue and opportunities to meet expert panelists and distinguished speakers during this four-day meeting. And your participation enriches the dialogue among legal educators about our shared mission. The AALS Luncheon will feature as its keynote speaker, Legal Adviser of the U.S. Department of State Harold Hongju Koh. There are three AALS Presidential Workshops scheduled: (1) Globalizing the Curriculum; (2) Assessing the Future of International Criminal Justice - Evolving Individual Accountability - From Nuremburg to the International Criminal Court; and (3) Law School and Its Critics. In addition, participants are welcome at all programming, including many programs with international relevance, including:

Crosscutting Program on Climate Change and Indigenous Peoples: The Intersection of Environmental Law, Natural

Resources Development, Water Law, Energy Law, International Law, and Indigenous Law

AALS Committee on Libraries and Technology- "The Times They Are A’Changin:” Leveraging Library Services and

Resources to Respond to Evolving Faculty Scholarly and Curricular Needs

Section on Admiralty and Maritime Law - Thirty Years of the United Nations Convention on the Law of the Sea

Section on Comparative Law and Labor Relations and Employment Law Joint Program - Workers After the Ascendancy of

Global Financial Capital

Section on Animal Law - A Global Perspective of Animal Law

Section on Children and the Law, Co-Sponsored by International Human Rights - Evolving Responsibilities: The Impact of

Recent Global Trends on Children and Families

Section on Law, Medicine, and Health Care, Co-Sponsored by Employee Benefits and Executive Compensation -

American Exceptionalism, Health Reform and the Persistence of Employer-Based Benefits

Section on Civil Rights and Immigration Law Joint Program - The Civil Rights Consequences of State and Local

Responses to Immigration and Immigrants

Section on Family and Juvenile Law - Defining and Supporting the Parent-Child Relationship: Comparative and

International Perspectives

Section on Pro Bono and Public Service Opportunities, Co-Sponsored by Section on International Human Rights - Pro

Bono Without Borders: Public Service Projects in an International Context

Section on Transactional Law and Skills - Researching and Teaching Transactional Law and Skills in an Increasingly

Global World

Section on Business Associations - Business Associations and Governance in Emerging Economies

Section on Internet and Computer Law and Mass Communication Law Joint Program - Politics and the Media, New and

Old

Section on International Human Rights - Human Rights in Times of Conflict: New Voices in Human Rights

Association of American Law Schools

Edition Two 2012 38


Section on Law and Mental Disability, Co-Sponsored by Section on Disability Law - Mental Health Courts and Their Uses

of Therapeutic Jurisprudence: International Perspectives

Section on Africa - Lesson from Africa on Legal Pluralism: Customary Law, Constitutional Provisions and International

Norms

Section on Graduate Programs for Non-U.S. Lawyers and Law and South Asian Studies Joint Program - Legal Education

and Legal Reform in South Asia

Section on Indian Nations and Indigenous Peoples - Indian Gaming and the Future of Tribal Sovereignty

Section on Jewish Law - Exploring Paradoxes and Anomalies in Jewish and Comparative Law

Section on International Law - Global Corporate Rights and Responsibilities: Reflections on Kiobel and Citizens United

Section on Islamic Law, Co-Sponsored by Section on Law and Religion - Remaking the Islamic State after the Arab Spring

Section on International Legal Exchange - Outcomes, Measures and Assessment in International Legal Exchange

Section on Student Services - Redefining the Student Affairs’ Role in Designing Structures to Address Current Global

Open Program on European Law - The Globalization of European Privacy Law?

Open Program on Global Finance, Multinationals and Social Cost

The Annual Meeting offers numerous opportunities to connect with your colleagues around the world at the many networking events organized by law schools, educational organizations, and the AALS throughout this 4-day Annual Meeting:

AALS Inaugural Law and Film Series

AALS Gala Reception

AALS Reception for Legal Educators from Law Schools Outside the United States

For more information on this exceptional meeting, visit www.aals.org/am2013/ Professor Lauren Robel President, AALS

http://www.aals.org/am2013/

Edition Two 2012 39


International Association of Law Schools

International Association of Law Schools Annual Meeting The Role of Law Schools and Human Rights 6-8 March 2013 Mysore, India Through the thoughtful generosity of Infosys Technologies, Inc., one of India and the world’s premier technology companies, the meeting will be held at its Global Education Centre in Mysore, India. The dates of the meeting are 6th-8th March 2013. The education center is a state of the art facility and is one of the largest corporate education centers in the world. All meals will be at centre. Lodging will be at the Hostel located at the centre. The theme of this year’s annual meeting is the Role of Law Schools in the Human Rights discourse. This conference is not meant solely for scholars in the human rights field. Rather, it is an exploration of its interaction with the law and legal education. It is general in scope. All legal education scholars are invited to contribute. We have divided the topic into five general themes:

Key Issues in Teaching Human Rights in Law Schools

Law Schools as Contributors to Public Policy on Human Rights

Human Rights Themes in the Life of the Law School

Experimentation and Innovation in Teaching Human Rights

Teaching Business and Human Rights

Australia is a strong supporter of the IALS, and we encourage you to continue to show this continued support. This conference feeds very well into recent initiatives in Australia to internationalise the curriculum, and will also interest human rights scholars. For more information, please visit the IALS Annual Meeting Website at http://www.ialsnet.org/services/conferences/annual-meeting/ or contact [email protected]

http://www.ialsnet.org/services/conferences/annual-meeting/

http://www.ialsnet.org/services/conferences/annual-meeting/


Edition Two 2012 40


Edition Two 2012 41


Ethics & the Legal Profession

Maxine Evers

[email protected]

Evidence & Procedure

Kathy Douglas

[email protected]

Family Law Susan Armstrong

[email protected]

Indigenous Peoples & the Law

Matiu Dickson

[email protected]

Intellectual Property

David Price [email protected]

International Law

Daud Hassan

[email protected]

Labour Law

Kristy Richardson

[email protected]

Law & Computers

Alexandra Sims

[email protected]

Law & Economics George Barker

[email protected]

Legal Theory and Law in Context

Michael Head

[email protected]

Law & Medicine

Shih-Ning Then [email protected]

Law & Social Justice

Patricia Easteal

[email protected]

Law for Non Law Students

Patty Kamvounias

[email protected]

Legal Education

Judith McNamara

[email protected]

Legal History

P.M Vasudev

[email protected]

Legal Research & Communication

Natalie Cuffe

[email protected]

Revenue Law

Robin Woellner

[email protected]

South Pacific Legal Studies

Jennifer Corrin

[email protected]

Tort & Contract

Penelope Watson

[email protected]

Clinical Legal Education & Practical

Legal Training

Paul Rogers

[email protected]

Competition and Consumer Law

Alex Bruce

[email protected]

Company Law

Anil Hargovan

[email protected]

Comparative & Asian Law

Simon Butt

[email protected]

Constitutional Law

Imtiaz Omar

[email protected]

Criminal Law

Kris Gledhill [email protected]

Dispute Resolution

Marilyn Scott

[email protected]

Environmental Law

Trevor Daya-Winterbottom

[email protected]

Equity and Trusts & Property Law

Fiona Burns

[email protected]

Sue Tappenden

[email protected]

Current Interest Group Conveners





























Edition Two 2012 42


2012 ALTA Conference Convener Reports

COMPETITION AND CONSUMER LAW

Convener: Alex Bruce

Number of Attendees: 25

Papers Presented;

Yvonne van Roy, Victoria University of Wellington: Providing Effective “Cooling Off” Periods in Consumer Law

Trish O’Sullivan, Massey University: Online Shopping and Consumer – Is Conduct More Important than Communication in Contract Formation?

Christopher Hare, Auckland: The Duties of Bank Customers: W(h)ither Tai Hing?

With the introduction of the Australian Consumer Law on 1 January 2011, Yvonne explored a very important issue; whether and to what extent consumers are protected by cooling off periods. Through a discussion of recent New Zealand case law, the ACL and the NZ Consumer Law Reform Bill, Yvonne demonstrated how consumers were not well informed of their rights under relevant cooling off periods. Yvonne’s discussion particularly focused on the vexed areas of uninvited (unsolicited) sales and the sale of extended warranties.

The dramatic growth of online B2C commerce raises significant issues in terms of contract formation and consumer protection. Trish explored the extent to which the conduct, as opposed to communications, of the trader and the consumer, mediated through a website creates the binding contract. In these circumstances, Trish argued that in these circumstances, it is the trader that makes the offer by activating a website and the consumer who accepts the offer by submitting payment details. A lively discussion followed Trish’s presentation.

Chris explored the limits of duties imposed on bank customers in managing their financial accounts. Chris argued that attempts to impose wider duties on bank customers have largely been halted by the decision of the Privy Council in Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank (1986). In this context, Chris argued that the decision in Tai Hing should be reversed, especially in the context of statutory developments including various Banking Codes and the recently introduced Payment Services Regulations 2009 (UK).

CRIMINAL LAW

Convener: Kris Gledhill (with Dr Arlie Loughnan)


Session 1:

Panel Discussion – Innovation in Teaching Criminal Law

Presenters: Dr Arlie Loughnan, University of Sydney; Prof Thomas Crofts, University of Sydney & Prof Alex Steel, University of New South Wales

Session 2:

Papers Presented;

Anne Matthew, QUT: The Sapphire Vortex: A blended learning approach to curriculum design in Criminal Law and Sentencing,

Illija Vickovich, Macquarie: Usurping the Role of the Jury: The Danger for Judges with Tendency and Coincidence Evidence,

Mary-Rose Russell and Marnie Prasad, Auckland University of Technology: The persuasive influence of human rights jurisprudence on domestic criminal law

The Criminal Interest Group was spread over two sessions and involved varied papers and a panel discussion. The latter looked to the question of innovation in the teaching of criminal law and, with significant input from the audience, the panel reviewed a number of issues that could properly be taken into account in deciding how to make sure that the pedagogy of criminal law teaching reflects the needs of relevant interested parties, including students and the legal profession. The panel members are hoping to take their discussion further by contributing to a book on the topic. In the second session, three papers were presented, looking both at issues of course design and of substantive criminal law. It is to be hoped that improvements to the ALTA website will allow the development of discussions between members of the Criminal Law Interest Group (and, perhaps, symposia on comparative criminal law issues). If you would like to be involved in developing this, please contact Kris Gledhill at [email protected].

ETHICS AND THE LEGAL PROFESSION

Convener: Maxine Evers

Papers Presented;

Saskia Righarts, University of Otago: Litigants’ perspectives of the Law: Why should we care and what role should it have?

Sascha Mueller, Lecturer, University of Canterbury: Regulating Natural Disasters: Emergency Powers and Recovery Legislation

Magdalene D’Silva, UWS: The Duty of Loyalty and Legal Professional Privilege in the Global Economy

Peter Boulot, JCU: Legal Ethics: Professional Practice at the Edge of Chaos?

The presentations in the Ethics and The Legal Profession were diverse and extremely interesting and thoroughly prepared presentations.

Dr Saskia Righarts, Professional Practice Fellow, Faculty of Law, University of Otago presented on the topic of Litigants’ perspectives of the Law: Why should we care and what role should it have?

Sascha Mueller, Lecturer, University of Canterbury discussed the Christchurch earthquake in Regulating Natural Disasters: Emergency Powers and Recovery Legislation.

Magdalene D’Silva, Sessional lecturer, School of Law, University of Western Sydney shared an international perspective with The Duty of Loyalty and Legal Professional Privilege in the Global Economy.

Peter Boulot, Lecturer, School of Law, James Cook University provided an insight into Legal Ethics: Professional Practice at the Edge of Chaos?

The session went very well with some valuable and positive discussion.


Edition Two 2012 43


LABOUR LAW

Alternate Convener: Belinda Smith


Papers Presented;

Anne Hewitt, Adelaide: Is there utility in bringing a theoretical perspective to the anti-discrimination law harmonization project?

Cindy Schipani, University of Michigan: Mentoring as a Potential Remedy for Gender Discrimination: Evidence from the United States and Europe

Ian Henry, Victoria University: Implied Term of Mutual Trust and Confidence in Employment Contracts an Oxymoron?

There was a reasonable amount of discussion and, with only two speakers in the end, they each had time to present and respond to questions. In that way it was a success.

LAW AND COMPUTERS

Convener: Alex Sims


Papers Presented;

Kayleen Manwaring, UNSW: Upwardly mobile? New legal directions for mobile technologies,

Niloufer Selvadurai, Macquarie: The convergence of broadcasting and telecommunications: A technology-neutral regulatory framework for the communications sector

In Upwardly mobile? New legal directions for mobile technologies, the additions in 2006 to the “fair dealing” exceptions under the Copyright Act were made to facilitate time- and format- shifting, methods heavily used by the mobile-equipped generation to listen and watch all forms of content on their mobile phones and tablets. The decision of Rares J in the Federal Court in Optus v NRL (No 2) [2012] FCA 34 which had held that Optus had not infringed copyright by format shifting for its customers so that its customers could view recorded TV programmes on devices of their choice at a later date, was overturned by the Full Federal Court. The Full Federal Court therefore took a restrictive view of fair dealing for the purposes of time shifting. The legal, technical and societal impact of the Full Federal Court’s decision was discussed vigorously.

In the convergence of broadcasting and telecommunications: A technology-neutral regulatory framework for the communications sector, the new regulatory framework for the communications sector in Australia was discussed. Regulation will be based on the nature and scale of the service provided rather than the underlying technology or delivery platform. The reform forms a movement from a vertical "silo" based model towards a horizontal "layered" model that mirrors the structure of the internet. It was agreed that the changes were sensible and brought the regulation of the sector more into line with practical and technical realities.

LAW AND MEDICINE Convener: Shih-Ning Then


Papers Presented;

Meredith Blake UWA: Back to the Beginning: Injecting International Perspectives into the Australian Debate on Euthanasia

Brian Sengstock, Sunshine Coast: The increased mobility of paramedics and the need to globalise paramedic legal education in Australia

Julie Zetler, Macquarie: Friend or Foe? Legal and ethical challenges in accessing electronic patient health records for research

Marilyn Scott, UTS: “What do you mean, and what do you think I mean?” Interdisciplinary collaborative practice in the health sector

Three papers were presented at the Law and Medicine Interest Group session covering a range of diverse issues. The scope of our presentations which covered end of life, electronic records and paramedical legal education raised a number of interesting issues which all have contemporary relevance.

Associate Professor Meredith Blake considered the debate on euthanasia from an international perspective, drawing upon the different regimes overseas to inform the Australian debate.

Dr Brian Sengstock considered the modern medico-legal demands on paramedics and the implications this has on educating paramedics in the university sector.

Julie Zetler discussed the challenges presented by Australia’s new regulatory regime governing electronic patient health records and the impact in the research context.

Thank you to the presenters for an enjoyable and informative session.

LEGAL EDUCATION

Convener: Judith McNamara

Alternate Convener: Rita Shackel


Session: Blended Learning and Technology

Papers Presented;

Des Butler, QUT: The OO Files: Providing on-line formative feedback on Contract Law learning in a narrative setting

Kate Galloway, JCU, Kristoffer Greaves, Deakin, Melissa Castan, Monash: Interconnectedness, Multiplexity and the Global Student: Using blogging and micro blogging to open students’ horizons

Pompeu Casanovas, Autonomous University of Barcelona: Legal Crowdsourcing and Relational Law. What Web 3.0 Can Do for Legal Education

Three excellent papers were presented in this session. All three papers were well prepared and very well received. The papers raised quite different issues but all had a common connection in their discussion of the use of technology in teaching law.

Edition Two 2012 44

A LTA Ne ws l e t t e r The first paper on OO Files was quite a technical paper with a narrow focus. The paper was very useful by way of providing insight into how technology can be used to provide on-line formative feedback to law students in specific substantive areas of law.

The second paper on interconnectedness and blogging was very cutting edge in its focus and presentation. A number of points of discussion arose in regards to the use that may be made of blogs to connect students and scholars with similar interests. The power of the Blog as a tool for connectivity globally was emphasized.

The final paper in this decision on legal crowdsourcing raised important issues around creation of electronic footprints. The paper raised a number of issues around how the web and technology more broadly can be constructively utilised as a tool for teaching law but also earmarked some areas for caution.

Overall, the session was excellent and presenters and the audience were all deeply engaged.

PROPERTY LAW

Convener: Fiona Burns


Papers presented;

Kate Galloway, JCU, Penny Carruthers, UWA and Natalie Skead, UWA: Teaching, Skills and Outcomes in Australian Property Law Units: A Survey of Current Approaches

Kate Galloway, JCU, Penny Carruthers, UWA and Natalie Skead, UWA: Assessment in the Law School: Contemporary Approaches of Australian Property Law Teachers

Penny Carruthers, UWA and Natalie Skead, UWA: Those grinding tectonic plates: Indefeasibility of title and proprietary estoppel

The session was a unique blend of results from empirical studies of teaching and assessment of the teaching of property law; and a consideration of fundamental and sometimes contentious black-letter law issues.

The first and second of the three papers reported on the results of an in-depth (and arguably the most recent, if not the first) online survey of the teaching and assessment of property law subjects throughout Australia. It confirmed that there is a considerable degree of similarity across Australia in terms of the kinds of topics covered and the types of assessment used to determine teaching and learning outcomes. However, it was clear from the presenters (and also from some of the comments of those surveyed) that although many lecturers would like to cover modern property topics or be innnovative in their presentation and assessment a number of factors such as resources and class sizes curtailed experimentation. It was concluded that the use of online tools could be helpful in invigorating property law teaching.

The third paper considered the question of the interface of the law of estoppel, (based on equitable conscience) and the principles of fraud, rights in personam and indefeasibility of title in the Torrens title. Although the paper was still a ‘work in progress’ the presenters ably highlighted some of the complex issues as the tectonic plates of the Torrens system and the well-known equitable causes of action based on estoppel continue to meet, blend and conflict.

REVENUE LAW

Convener: Robin Woellner

Number of Attendees: Session One 15; Session Two 12

Papers presented;

Annette Morgan & Dale Pinto, Curtin: The Current State of Play Relating to Not-For-Profit Tax Concessions in Australia

Dale Pinto, Curtin: Strengthening the ATOs Existing Governance Framework: Is the Proposed Tax System Advisory Board the Answer?

Elen Seymour, UWS: Charitable Purpose: Advancement of Religion

Mark Keating, Auckland: Unmasking the Tax Havens - Alternatives to the Tax Information Exchange Agreements

Keith Kendall, La Trobe: Can tax agents provide legal advice?

Andrew Maples, Canterbury: A 'mind-numbing legal analysis' - Interpretative difficulties with a multiple VAT/GST rate structure

David Newlyn & Michael Blissenden, UWS: Tax Law Curriculum development: current trends in the global environment",

Robin Woellner, JCU and UNSW: Penalising a tax position that is not 'is reasonably arguable' is – the beat goes on

It is pleasing to see the Revenue Law Interest Group continuing to expand and develop, particularly the camaraderie and mutual support shown by participants. Equally pleasing was the number and standard of papers presented, with eight high-quality papers delivered covering a wide range of national and international, technical, policy and teaching issues.

There was animated discussion among members of the Group before and after sessions, though the limited time available in light of the number of papers presented constrained the depth of discussion that was possible during sessions.

The focus of the respective papers (as listed above) was:

Morgan and Pinto: The implications of the 2011 Federal Government Budget and associated significant proposed reforms for the future operation of NFPs in Australia;

Pinto: The potential in light of inter/national experience for the proposed Tax System Advisory Board to succeed in its aim of adding value to the Australian tax administration system;

Seymour: The potential impact of the new ACNC and legislative definition of charitable purpose";

Keating: Analyzing the (in)effectiveness of current double tax treaty provisions relating to tax havens, and possible more effective alternatives;

Kendall: Tax agents provide legal advice when they provide tax advice to clients, but are doing so legitimately under the Tax Agents Services Act 2009;

Maples: Key aspects of the NZ and UK VAT structures, particularly in relation to the treatment of food and the difficulties which arise from a multi-rate structure in that context, and lessons for Australia;

Newlyn and Blissenden: Historical approaches to development of law school curricula in the context of the recent move to a more "holistic" approach of an "authentic or productive curriculum";

Woellner: Recent developments in relation to penalties under the TAA for taking a position that is not reasonably arguable, and the implications of recent decisions weakening the established test.

Edition Two 2012 45


On 27 September 2012 Professor Harold Ford AM passed away. Professor Ford was President of the Australasian Law Schools Association in 1966-1967.

Born in 1920, Professor Ford enrolled at the University of Melbourne as a 16 year old in the Articled Clerks’ Course. Naval service from 1939 to 1946 interrupted his studies. He won the Supreme Court Prize for Articled Clerks at the Final Honour Examination in 1948. In 1949 he became the fifth member of the Law School’s full time academic staff. In 1960 he was appointed Robert Garran Professor of Law in the Australian National University and Foundation Dean of the Faculty of Law. He returned to the University of Melbourne in 1962 on appointment as Professor of Commercial Law. He was Dean in 1964 (in Sir Zelman Cowen’s absence) and from 1967-1973. Apart from being a visiting teacher at the University of Michigan in 1964 and Queen Mary College, London in 1972, he taught Trusts and Legal Persons/Company Law until his retirement in 1984. From 1974 and after retirement he taught in the LLM course-work program. His Deanship in 1967-1973 saw the institution of the Professional Admission Summer School, initiation of moves for the establishment of the Leo Cussen Institute and preparation of the program for LLM by course-work.

Professor Ford made substantial contributions to law reform. He served in 1963-1964 on the Manning Committee on Bills of Exchange. In 1974-1975 he was one of a small team which prepared the National Companies Bill. In 1976-1978 he chaired a Corporate Affairs/Stock Exchange joint working party which recommended establishment of a central clearing house system ultimately realised in the current CHESS system. In 1984-1990 he chaired the Companies and Securities Law Review Committee. The quality of the reports produced by that body is well-known internationally. In the final report of the Companies and Securities Law Review Committee, the Committee stated:

“The members of the Committee wish to acknowledge publicly the outstanding and major contribution made to the work of the Committee by its Chairman, Professor Harold Ford. Professor Ford has throughout the seven years of the life of the Committee by his industry and intellectual leadership been the driving force in the achievements of the Committee. It is a fitting testament to the Chairman that the Committee has rightly become known as ‘the Ford Committee’.”

In 1977 Professor Ford became a Fellow of the Academy of the Social Sciences in Australia. The University of Melbourne conferred on him the honorary degree of LLD in 1987. In 1994 he was made a Member of the Order of Australia for services to the law. In 2000 the Corporate Law Teachers Association conferred its first honorary life membership on Professor Ford in recognition of his outstanding achievements as a scholar, educator and reformer.

Professor Ford was an extraordinarily influential scholar. He was the sole author of the first four editions of Principles of Company Law (since renamed Ford’s Principles of Corporations Law and now in its 14th edition). He was also co-author of Principles of the Law of Trusts. His many other publications included Unincorporated Non-Profit Associations (Clarendon Press), Principles of the Law of Death Duty (Law Book Co), An Introduction to the Securities Industry Acts (co-authored, Butterworths), The Law of Wills (co-authored, Law Book Co), Wills and Intestacy in Australia and New Zealand (co-authored, Law Book Co) as well as many chapters in books and journal articles.

When he stepped down as Dean the Minute of Appreciation read at the meeting of the Faculty of Law held on 15 May 1974 records that the Faculty expressed its “warm appreciation” for his work as Dean and for the “considerable skill and wisdom he brought to his term as Dean”. It is also recorded in the Minute:

“His quiet energy enabled him to combine the onerous obligations of the Deanship with heavy commitments as a member of Council and its various Committees, while still contributing much to the activities of professional organizations. Above all he remained universally admired by those students who benefitted from his teaching and maintained his scholarly research activit ies. His modesty and discretion won him the ready affection and respect of his colleagues and, at their request, he became the first Dean to be appointed for a term of years.”

When Professor Ford retired from the University of Melbourne at the end of 1984 the Law Institute Journal marked his retirement with a feature article in which it was stated:

“He is universally admired and respected both for his scholastic and professional expertise as well as for his basic humanity and kindness.”

Obituary -

Vale Professor Harold Ford AM*

Edition Two 2012 46


For Professor Ford’s 80th birthday, Melbourne Law School organised a conference with many distinguished speakers from academia and the judiciary. The proceedings were published as a book (Ian Ramsay (ed), Key Developments in Corporate Law and Trusts Law: Essays in Honour of Professor Harold Ford, 2002). The Foreword to the book was written by the Honourable Justice Kenneth Hayne of the High Court of Australia who was a student of Harold Ford and who said in relation to his research:

“All of his work has been marked by the restless questioning and intellectual rigour of the scholar…it has been the measured, incisive, and above all deeply considered, contribution to the fundamental consideration of principle which has marked his work. Few in Australia have made the contribution to legal scholarship that he has made over the years.”

Neither his keen intellect nor the affection with which he was held dimmed over the years. The Harold Ford Chair of Commercial Law and Melbourne Law School’s major JD scholarships were named after him in recognition of all that he contributed to the Law School and the respect with which he was held in the academy and the profession alike.

*A paper titled “Professor Harold Ford and the Development of Australian Corporate Law” is available on the SSRN website.

Professor Ian Ramsay Harold Ford Professor Commercial Law

Melbourne Law School, University of Melbourne

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1699584

Edition Two 2012 47


The Faculty of Law at QUT has been saddened this year by the passing of its foundation Dean, Professor Tom Cain AM, as well as their second Dean (and President for the 1992 ALTA Annual Conference), Professor David Gardiner AM.

Thomas Ewan Cain was born on the Isle of Mann, educated at Oxford, and devoted most of his professional career to legal education in the UK, Sydney, QUT, and finally at Bond. His proudest achievement was establishing the QIT (later QUT) Law School in 1977, which was the first law school in Australia established outside a university. When the first classes commenced in 1977, the Law School had 6 full-time academic staff, including Tom, 4 part-time tutors and 200 students. As well as being a respected Dean and a gifted administrator, Tom was a very popular lecturer in contract law and company law and he maintained his love of teaching throughout his professional life.

Prior to the introduction of a law school, QIT’s focus had been around the disciplines of applied science and engineering and at times there were ‘differences of opinion’ between Tom and QIT’s senior managers. On these occasions Tom, who had English naval experience, planned his campaigns with naval precision. To quote David Gardiner (a foundation staff member and Tom’s former Sydney colleague) “We were unsure sometimes what the campaign engaged with central administration was about or whether we had ‘won’, but we damn well knew we had been in a campaign or skirmish and were trained in keeping a weather eye on storms blowing in from the east where central administration was bunkered down.”

Tom willingly accepted the challenge of establishing the first new law school in Queensland since UQ opened its doors in 1936. He was excited at the prospect of setting up a ‘greenfield’ law school, which focused on teaching and which was student orientated. Tom also understood the importance of engagement with the legal profession and was determined to develop close relations with the profession, something which was not common at that time in some of the older law schools. Many a senior partner of Brisbane law firms received a personal visit from Tom in those early years.

Tom believed the QUT ‘experience’ should be about more than just books and from 1984-1989, he was the inaugural President of the Friends of the QIT Association (later known as the QUT Foundation) which raised money to address the university’s lack of sporting and other facilities. When Tom retired as Dean in 1989 the QUT Faculty of Law had moved into its own dedicated building in C Block along with its own Law Library, had an enrolment of over 1300 students, offered both undergraduate and postgraduate courses, and produced its own law journal.

In 1989, Tom was awarded the Australian Medal for his services to education and law and was conferred an honorary doctorate by QUT as part of the Law Faculty’s 20th Anniversary activities. Tom was integral in establishing the Law Founders’ Scholarship, once again visiting law firms and writing to graduates to seek their support in establishing a fund to provide financial assistance to first year students from disadvantaged backgrounds. Tom continued to take a personal interest in the progress of all of the recipients and was particularly proud of his involvement in setting up this scholarship.

Following his ‘retirement’ from QUT, Tom became one of the founding law professors at Bond University (1989-1995), before returning to Sydney and ‘real’ retirement.

There are still several QUT staff members who were privileged to work with or be taught by Tom during his ‘reign’ at QUT and many more members of the profession who remember him fondly and hold him in high regard. This was obvious when Tom attended the Faculty’s 30th anniversary in 1997 with his wife Beres and it took them over an hour to take their leave from the function. Tom had a wonderful memory and not only remembered the names of the many students he taught, but could also tell you exactly what seats they had sat in during his lectures. He was passionate about legal education, wine and rugby and was a very proud family man. He leaves behind a lasting legacy.

Wendy Cusack


Obituary -

Professor Tom Cain AM

Edition Two 2012 48


In the mid 1970s David George Gardiner was working with Sir Maurice Byers QC, a Solicitor-General for the Commonwealth in defending constitutional challenges to Whitlam-era legislation. He was also lecturing part-time for the Barristers’ and Solicitors' Admission Board courses in Sydney, where he met Tom Cain, who administered the courses through the Law Extension Committee at the University of Sydney. David had also been lecturing Equity in Sydney at the time, and was contemplating switching to academia full-time in order to teach torts, his particular area of interest. He was therefore enticed by Tom's invitation to join him as a foundation member of a new law school to be established at the then Queensland Institute of Technology, the first Law School to be established in Australia outside a traditional university, and in a College of Advanced Education that was technologically dominated. The course, which was being established at the request of the profession, was to have an emphasis on good teaching and have solid relations with the profession and its training needs.

David found the first years “bloody hard work” but rewarding. He set up and taught the Torts course to the first intake of full time students in 1977 while in the same year preparing for offering Constitutional Law in 1978. Then in 1978 while teaching Constitutional Law for the first time to the second-year group and teaching Torts to the first part-time cohort, he prepared the Equity course

for delivery in 1979 to the by then third year of the full-time group. Anyone lucky to have been in one of David's classes will remember him as an energetic and engaging communicator.

David took on added responsibility when he co-ordinated the external course offering which was added to the other modes of learning. He was an early practitioner in alternative methods of teaching, embarking upon the experiment (for its time) of video recording lectures for external students. David would be the first to admit that those early exploits, which involved him being filmed seated behind a desk, were somewhat imperfect, it was a demonstration of his vision for the use of technology to assist learning and the adoption of flexible learning approaches. With his guidance and input the Law School secured a number of significant grants, including a $130,000 grant in 1993 that led to the development of The Crimson Parrot, a multimedia program which won a State Government technology award and which is still in use in the Law School today. At about the same time he also took the then unusual but equally visionary step of bringing an educational consultant into the Faculty as an important step in supporting staff in their teaching role and establishing a forward-looking ethos.

David was also mooting master at a time that moots were offered in all core units and conducted in a program involving Supreme Court and District Court judges and barristers. He was in that role on the infamous occasion at one moots dinner involving a number of judges and barristers, when a stripper was engaged to perform by one of the teams in order to disrupt the thinking of a member on a rival team. David remarked afterwards in his typical unflappable and mischievous style that he did not know whether he was more angry that it had happened or that he was not there to see it happen!

David became the Law Faculty's second Dean when Tom Cain retired in March 1989. In that role David demonstrated his enormous capacity for strategic thinking, persuasion, motivation and inspiration. He held a genuine interest in the teaching, research and service activities of those in the Faculty and was often seen wandering the hallways chatting to staff about their latest endeavours. He saw the Faculty grow through the addition of a School of Justice Studies, a tripling of the number of courses offered by the Faculty, including postgraduate and double degrees, a doubling in student numbers, and the establishment of the Faculty’s first research centre. In 1992, while he was President of ALTA, the Law School hosted the annual ALTA conference.

He was the principal supervisor of the first three PhD students in the Faculty. As a doctoral supervisor he was a neophyte, but he brought to the role an abundance of wise insight, steady patience, generosity of time, good humour, and nurturing spirit that those of us in such a role should all aspire to emulate.

David’s intellectual power and his ability to achieve good outcomes were recognised by the University through a number of secondments including coordinating the University's response to the Commonwealth's Quality Audits in the 1990s. These led to him stepping down from the Deanship informally at the end of 1995 and formally at the beginning of 1997, when he was appointed a Pro Vice Chancellor and later Deputy Vice Chancellor, serving in a number of different roles. He also made invaluable, wide-ranging contributions across the university sector, including his work with the Australian Learning and Teaching Council standing committee on Leadership for Excellence and, as a member of the National Diploma Supplement Consortium steering committee,

Obituary -

Professor David Gardiner AM

Edition Two 2012 49


his participation in the conceptualisation of the ePortfolio project, which pioneered the online recording of projects and resumes by staff and students.

In 2009 David was awarded an honorary doctorate by QUT for his contribution to the university and the Australian Higher Education sector. He was then recognised in 2010 as a Member of the Order of Australia (AM) for his exceptional service to university administration, legal education, and a range of professional associations.

David passed away peacefully in Brisbane on Sunday, September 16, 2012, after a long illness which he had faced with a good humoured stoicism. He was aged 63. He is survived by his wife Susan, his children Benjamin, Sarah and Simon, and his grandchildren Archer and Oscar. The QUT and Faculty of Law communities have lost a much loved leader, friend and mentor.

Professor Des Butler


Edition Two 2012 50


The 2012-13 ALTA Executive

Immediate Past Chairperson


Faculty of Law

Queensland University of Technology

Deputy Treasurer

Professor Robin Woellner

Faculty of Law, Business and the

Creative Arts

James Cook University

New Zealand Chairperson

Associate Professor Alex Sims

Department of Commercial Law

University of Auckland

New Zealand Secretary

Dr John Hopkins

School of Law

University of Canterbury

General Executive Member

Dr Jennifer Corrin

TC Beirne School of Law

The University of Queensland


Professor Stephen Graw

School of Law

James Cook University


Professor Michael Coper

ANU College of Law

Australian National University

Deputy Chairperson

& JALTA Editor-in-Chief


School of Business Law and Taxation

Curtin University of Technology

General Secretary

Professor Michael Adams

School of Law

University of Western Sydney

General Treasurer

Associate Professor Helen Anderson

Melbourne Law School

The University of Melbourne

LER Editor-in-Chief

Dr Michelle Sanson

School of Law

University of Western Sydney

New Zealand Executive Member

Mr Sascha Mueller

School of Law

University of Canterbury

General Chairperson


School of Law

University of South Australia

New Zealand Executive Member

Mr Wayne Rumbles

Law School

University of Waikato

ALRS Editor-in-Chief


Faculty of Law

University of Technology, Sydney


Professor Maree Sainsbury

School of Law

University of Canberra

Edition Two 2012 51


If you have any questions, concerns or suggestions for our organisation, please contact us:

Australasian Law Teachers Association

Faculty of Law University of Technology, Sydney

PO Box 222 Lindfield. NSW 2070

Ph: +61 2 9514 5414 Fax: +61 2 9514 5175 [email protected]

www.alta.edu.au

Newsletter edited by:

Nathalie Poludniewski

ALTA Administrative

Coordinator

Contact ALTA


http://www.alta.edu.au/

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