Saturday, 29 March 2014

Queensland to reintroduce gendered statutory language

On 19 March, the Queensland Attorney-General, Jarrod Bleijie, introduced the Crime and Misconduct and Other Legislation Amendment Bill 2014 to Parliament. The Bill is designed to respond to two inquiries into the working of Queensland's Crime and Misconduct Commission. The Bill has been roundly criticised - not least by Tony Fitzgerald QC, who has described it as 'a gross abuse of power'.

In this post however, I will examine the legitimacy of a lower profile change proposed by the Bill: the renaming of the head of the CMC from 'chairperson' to 'chairman'. See eg clause 35:
35 Amendment of s 224 (Qualifications for appointment as the chairperson)
(1) Section 224, heading, ‘as the chairperson’—
omit, insert
chairman and deputy chairman
(2) Section 224, ‘chairperson if’—
omit, insert
chairman or deputy chairman if

Thursday, 27 March 2014

Women's Property

The Married Women's Property Acts made a big change...but women's property remains an exception*

I have been doing some deep reflection on the progress of my thesis. I have concluded that my thesis question seems to have suffered a little from 'drift' away from my initial goal, to something that incorporated it but was perhaps a little different.

In my last iteration, I was looking at the doctrinal incoherence of constructive trusts... Indeed I was immersed in the intricacies of why across four common law jurisdictions (Australia, Canada, New Zealand and England) the law of trusts was uniform in recognising the 'intimate partner' constructive trust - and so a means of recognising women's separate property - but so diverse in the doctrine harnessed to deal with the 'problem' of women's separate property.

I've spent this last few weeks going back to basics. What was I really trying to show? My (bigger than PhD) idea is that the notion of property is itself inappropriate to deal with contemporary issues. I think property theory, in its liberal market mould, is unsuitable for our contemporary culture (copyright), for culture in its wider sense (first nations/Indigenous peoples' customary 'title') and it is most certainly unsuitable to deal with the huge issue of the environment, including of course, climate change. My PhD thesis is about the gendered nature of property and how it upholds the economic dependence of married women (married in a legal and de facto sense).

In my view, all property does is support the creation of a new market based on the idea of atomised, separated, individuals who are 'rational profit maximisers' and are in competition and unconnected with anyone else.

I'm not anti-capitalism - I agree that markets have created the circumstances for improvement in people's lives. But there must be a balance to the greed that accompanies unaccountable, unrelated, disembodied beings who exist in the eyes of the law (and economic theory).

So I have returned, in my thesis, to the roots of the question that first engaged me. I ask: is property gendered?

Here is a prezi that embodies my present thinking about how this argument might run. I'd be interested to hear your thoughts.

*image from https://ontariorealestatesource.wordpress.com/tag/women/

Sunday, 2 February 2014

Why the Great Barrier Reef should have legal standing

http://i.images.cdn.fotopedia.com/flickr-7995249943-original/World_Heritage_Sites/Oceania/Australia/Great_Barrier_Reef/Great_Barrier_Reef-Aerial_photography-Coral_reef-Marine_protected_area-Seascape.jpg
The Great Barrier Reef is under threat from its protectors


Friday saw the announcement that the Great Barrier Reef Marine Park Authority ('GBRMPA') had approved dumping of dredging spoil within the boundaries of the marine park. This followed the Commonwealth's go-ahead for the construction of the world's biggest coal terminal at Abbot Point, off Bowen, to facilitate mining in Queensland's coal-rich Bowen Basin.

The decisions were made in the context of the Great Barrier Reef Marine Park Act which, under s2A (1) apparently aims to:
provide for the long term protection and conservation of the environment, biodiversity, and heritage values of the Great Barrier Reef Region.
Despite the Minister's assurances that the decisions have been made based on 'the science' and the dumping will be subject to rigorous conditions, the very fact of the decisions by both the Commonwealth government and GBRMPA call into question the real intent of the Act.

Sunday, 22 December 2013

The perils of individualism and our dystopian present


http://www.abc.net.au/news/image/4458152-3x2-940x627.jpg

As a child, I read constantly and I read anything. Of note however, before I had reached secondary school I had been immersed in numerous novels about the Holocaust, had read Alvin Toffler's Future Shock and had spent a lot of time delving into Alicia Bay Laurel's glorious hand written and illustrated Living on the Earth.

Mine was a childhood vision of a dystopian present and a dangerous future for which I felt the need to prepare by knowing how to survive. This was accompanied by a deep sense of responsibility to be accountable for my own consumption. (A responsibility I admit that I have been only partially successful in fulfilling.)

Surrounded today by news of climate extremes, oil drilling in the Arctic, the real possibility of dredging in the Great Barrier Reef, expanding coal terminals on the reef, mining approvals over biodiverse regions such as the Galilee Basin's Brimblebox Reserve, move on powers over Queensland's bat colonies (and so on) the dangerous future I had envisaged has come to pass. And the dystopian present of the 1970s has taken a turn for the worse.

All of these decisions, in which each of us is complicit, arise out of a fundamental dislocation of our very self from our environment and indeed from society. Our governments however have failed to provide a cohesive narrative around these decisions, thus failing to see the inherent inconsistencies in their own positions.

Friday, 20 December 2013

There's no property in reputation


In a Sydney Morning Herald piece yesterday, the new Freedom Commissioner Tim Wilson claimed that reputation was 'essentially a property right'.

With the greatest respect, this is not correct as a matter of law. 

Sunday, 8 December 2013

Vale Denis Wright: the power of connection on Twitter

I have now been considering for some time the power of social media as a means of connecting professionally and intellectually with others. Indeed I have now co-authored two articles (one forthcoming) with online colleagues about the use of Twitter and blogging in legal academia. In the articles we have focussed on the capacity for sharing ideas and the value of social media in teaching and research. Peripherally we acknowledge the power of social media to connect on a more personal level.

On that note, I learned this morning of the death of Denis Wright. I 'knew' Denis via Twitter. I interacted with him occasionally. I also read his blog in which he shared stories of his life and with pragmatism and insight shared stories also of his declining health.

Despite our infrequent interactions online, I credit Denis with inspiring what may be a turning point in my own development as an academic. Perhaps this is a professional connection, but it felt - and feels - to me a personal one. In my early days on Twitter, I had a number of discussions with Denis on legal issues of interest. It was Denis who suggested to me that I write on a blog. He promised faithfully that what I had to say was important - well, important enough to attract an audience.

And so it was that two years ago - almost to the day - I made public my first post. Denis was the first to tweet about it. His confidence in me afforded me the courage to out myself in the hurly-burly of the online world. Surprisingly for me (especially given my often dry subject matter) my blog has to date clocked up over 43,000 hits.

For all the formal mentoring systems and processes, for all that has been written about academia and collegiality, I found in Denis Wright a combination of generosity of spirit, intellectual curiosity and quiet confidence that has, in retrospect, aided me in finding my academic voice.

Independently of any metrics of impact, or number of hits, or numbers of retweets, or 'outcomes' in the language of the neoliberal university, my occasional 140 character interaction with a man I would never meet in real life, represents the real measure of value of online engagement. Despite the moral panic to the contrary (bullying, trolling and our lost youth) there are, I believe, genuine human and humane relationships mediated by online tools.

And Denis Wright, gentleman of the blogosphere, showed exactly how that could be done.

Wednesday, 4 December 2013

Normative foundations of intimate partner constructive trusts

On 5-6 December the Melbourne Law School is hosting a Trusts Conference at which I will be presenting.  Here are the speaker notes and powerpoints for my presentation.
'Distribution, Redistribution or Maintaining the Status Quo? The Normative Foundations of Intimate Partner Constructive Trusts'

Judgments concerning intimate partner constructive trusts often claim not to effect a redistribution of property as between the legal and beneficial owners. Yet despite looking at the parties’ respective contributions and the context of their relationship, the courts’ findings embody assumptions about justice and the value of labor within marriage-like relationships. Therefore in finding a constructive trust and determining the date at which it arose, it is at least arguable that the courts are themselves allocating property interests. This paper examines key Australian decisions on intimate partner constructive trusts to identify and critique possible justificatory norms on which contemporary doctrine in this area is founded.