College of Business, Government and Law

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    The Vietnamese and the law.
    ( 1990-10) Burley, Jenny
    This article examines the unique barriers which exist between Vietnamese refugees and the Australian legal system.
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    Education v Casework: A Losing Battle: Some SA solutions.
    ( 1991-10) Burley, Jenny
    Community legal education (CLE) has traditionally been the poor relation of case work in the allocation of resources designed to improve access to justice in Australia. Against the many odds, community legal education has made considerable achievements. But those gains are again under threat where increasing case work demands consume reduced budgets. South Australia's solution to the dilemma of the demonstrable need for legal education to expand rather than contract has been to raise its own funds for worthwhile projects. Based on the 'Robin Hood' principle, user-pays public legal education now funds a host of other education activities. Previously neglected groups such as public and private sector employees have had their needs for legal knowledge met and it is this sector's ability to pay for training which has financed the provision of services to less advantaged groups. However, there is no guarantee that the public courses will continue to be profitable to the extent that the profit might finance other ventures. In that event, the battle for funding will resume and community legal education is likely to again become the poor relation of case work and impede access to justice for all Australians.
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    Multiculturalism in the law: Ethnicity overlooked?
    ( 1993-08) Burley, Jenny
    The recently completed "Multiculturalism and the Law" report from the Australian Law Reform Commission has thoroughly canvassed the issues of access and equity which arise in connection with the administration of the criminal justice system in a culturally diverse Australian society. It has made a number of sensible and achievable recommendations for reform which, if they are implemented, will go a long way toward addressing well-known and long-standing injustices which are experienced by ethnic groups when they come into contact with the legal system in Australian. However, as a result of recent research in the Vietnamese community in South Australia, I see difficulties arising in the implementation of some of those reforms. If the commission's recommendations are to be implemented, it is clear from the report that one of the key ways to facilitate the changes, especially those to do with education and support services, is to channel funds for services through mainstream ethnic community organisations. However, my research suggests that this may not be effective where issues to do with criminal justice and the Vietnamese are concerned. Internal cultural contradictions, and attitudes towards crime and criminals in this community cannot be legislated, or funded away. Unless we deal with significant, specific, cultural differences in any given ethnic community - in this case the Vietnamese - we are in danger of defeating the very reforms we are trying to achieve.
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    Cultural Heritage on the Move: Significance and Meaning.
    ( 1996) Simpson, Cheryl Ann
    This article appears in a special issue of 'Law in Context', entitled "Law and Cultural Heritage", edited by Martin Chanock and Cheryl Simpson. As Australians' 'cultural cringe' has diminished in recent years there has been a developing interest in 'things' Australian. This interest is reflected in those laws which seek to preserve Australian culture. In particular indigenous heritage has been the focus of much protective legislation for it is thought to be distinctly Australian. The natural landscape too has actively been promoted and connected with an Australian identity and this is also apparent in laws which preserve the environment. Debate about what properly depicts 'Australia' indicate that while there may be much consensus as to the need for legislation to protect both the built and natural environments there are many different interpretations of the concepts which are key elements of the legislation, viz, 'heritage' and 'culture'. These terms are vague and subjective and may well shift in meaning when applied to different aspects of 'the things we wish to save'. The cultural heritage of immovable things, buildings or sites may be read or interpreted differently to that of movable cultural objects such as aircraft or a painting. This article examines the problematic nature of these concepts in the light of new legislation which protects cultural heritage objects, namely the "Protection of Movable Cultural Heritage Act 1986 (Cth)". The article will focus on non-indigenous 'cultural heritage' objects as determined by this legislation in an attempt to see if these protected objects provide any meaning for a national identity. Under the Act certain cultural property will not be allowed to be exported from the country. The Minister makes the final decision on these matters. Where there is a dispute over the Minister's decision the matter may be appealed to the Administrative Appeals Tribunal. To date there have been a small number of these cases which have come before the Administrative Appeals Tribunal for review. It is these cases which will be examined.
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    Lawyers, lawyers and more lawyers: Can the profession cope with the growing numbers of law graduates?
    (Legal Service Bulletin Co-operative, Law Faculty, Monash University, 1996) Regan, Francis
    We are often reminded of the startling fact that there are more students currently studying to be lawyers in Australia than there are lawyers practicing law. And the expansion of law schools over the past 10 years means that there will be more and more law graduates entering the labour market in the future. So will there be a crisis in employment in the Australian legal profession in the near future? Will the new graduates have difficulties finding work? And will the practicing profession have difficulties absorbing the graduates? While it is clear that the legal services industry faces a major increase in supply of legally trained graduates it is probably still too early to predict what the precise consequences will be. And it is probably too early to argue that there is a crisis looming. Nevertheless it is worth asking whether we can currently detect early signs of problems in the industry.
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    Rolls Royce or Rundown 1970s Kingswood? Australia's legal aid in comparative perspective.
    (Law Faculty, Monash University, Clayton, Vic, 1997) Regan, Francis
    The Commonwealth Attorney-General, Daryl Williams’ comment earlier this year that Australia’s legal aid was a ‘Rolls Royce’ scheme was surprisingly ill informed and created an unfortunate perception that legal aid commissions (LACs) were well funded but mismanaged, bloated and wasting public money. The comment was made in order to support the 1996 Budget decision to cut Commonwealth funding to legal aid but as I demonstrate below, it showed a surprising lack of knowledge about Australia’s legal aid scheme. In particular, Williams ignored the evidence demonstrating that Australia’s legal aid is, by comparison with similar large, publicly funded schemes, one of the meanest in the western world. In this article I explore some context issues which may help explain why Williams cut legal aid and then I examine Australia’s scheme in a comparative perspective.
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    "Gender, 'Race' and International Relations: Violence against Filipino women in Australia" by Chris Cunneen and Julie Stubbs. [review]
    ( 1998-08) Burley, Jenny
    In the past two decades there has been anecdotal evidence that young Filipino women brought to Australia as fiancées or spouses of, usually much older, Australian men, are being exploited as 'sex slaves' and suffering from high rates of domestic violence. This monograph is the first study to investigate how such violence culminates in the homicide of Filipino women and children.
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    "Making Sense of the Family Court" by Leonie Star. [review]
    ( 1998-10) Burley, Jenny
    The "Family Law Act 1975" has been subject to multiple and ongoing reforms since it came into force more than 20 years ago and it is no easy task to steer a clear path through all its provisions. This book, however, is a very thorough guide for anyone who is contemplating divorce in Australia.
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    "If Divorce is the Only Way" by John D. Bieber. [review]
    ( 1998-12) Burley, Jenny
    Usually divorce manuals lead the reader through what they need to know about family law and the legal process. This book does more. In addition to providing sound legal advice, it engages with the emotional experiences of the divorcing couple and provides not only a catalogue of the emotional stages of separation and divorce, but also a positive path through what can often be a painful and destructive process.
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    Anzac heritage or Anzac history: Truth or Fiction?
    ( 2000) Couvalis, Spyridon George ; Simpson, Cheryl Ann
    In recent years, the protection of heritage has been discussed in many parts of the world. In Australia, new laws have been passed, such as "The Protection of Movable Cultural Heritage Act 1998 (Cth)", "The Heritage Act 1993 (SA)", "Heritage Amendment Act 1988 (NSW)", "Heritage Act 1995 (Vic)". Heritage has acquired a beatific image in popular culture (see for instance the cover of this issue of the "AltLJ"). However, in a diverse Australia the struggle for ownership of the past has lead to disputes about which heritage should be protected and to debates as to the level of protection that should be provided. As more 'things' have been included in the definition of cultural heritage, so too has protection of these 'things' been sought through the legal system. Thus legal definitions of cultural heritage can be cast in a narrow restrictive way to limit heritage to tangibles such as buildings, sites or objects. Conversely, legal definitions can be broad enough to encapsulate intangibles such as religion, folklore, oral history and living culture. When we consider all these points, it becomes obvious that the process of legislating for the protection of cultural heritage requires decisions as to what is to be protected, how it is to be protected and why it is to be protected. Legislators and regulators do not just protect items, they protect items understood in particular ways. The significant past is chosen - treating a war medal as something which should be protected to preserve what is quintessentially Australian is very different from treating it as a minor piece of Victorian bronze work. Further, in choosing the significant past, legislators and regulators are not just responding to demands made by some members of the public or by historians. They are also acting to shape the public's view of how the past is politically laden.
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    Legal aid and family law reform in Ireland.
    ( 2000-08) Burley, Jenny
    While Australia and the rest of the western world were restricting both funds and eligibility for civil legal aid during the 1990s, Ireland, whose civil legal aid is 97% devoted to family law matters, was expanding. At first glance, it might be supposed that the expansion of legal aid for family law matters in Ireland was a result of the introduction of legislation that for the first time allowed legal divorce in 1997. However, the reasons are more interesting and complex than this and need to be understood in terms of Ireland's history, politics and culture. Indeed, these factors combine to ensure that civil legal aid in Ireland is in a state of perpetual chaos.
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    How and Why is Pro Bono Flourishing? A Comparison of Recent Developments in Sweden and China.
    (Federation Press, 2001) Regan, Francis
    The pro bono activity of the private legal profession in a given society can best be understood as part of a partnership between the profession and government. The purpose of that partnership is for the profession, together with government, to take responsibility to try to ensure that, in theory, all citizens are equal before the law. The precise nature of that partnership varies widely between societies. Regan examines recent pro bono developments in Sweden and China. In the former country pro bono work by the profession had, until recently, disappeared but recent restrictions upon legal aid prompted the profession to re-establish a basic scheme. In China the recently established national legal aid scheme relies heavily upon the pro bono efforts of the emerging private profession.
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    Whatever happened to Legal Expense Insurance? Recent successes and failures of legal insurance schemes in Australia and overseas
    (Law Faculty, Monash University, Clayton, Vic, 2001) Regan, Francis
    Legal Expense Insurance (LEI) is one of the ‘access to justice’ mechanisms that was considered in many societies in the 1980s and 1990s. Governments, legal professions and legal reformers in rich western societies highlighted the potential of mechanisms such as LEI, contingency fees and class actions to improve citizens’ access to justice by controlling the cost of legal services. By controlling these costs, LEI and the other mechanisms promised to improve citizens’ access to legal services and the courts. LEI was particularly popular because it promised to improve access to legal services for the ‘in betweens’ of middle income groups. That is to say, it promised to improve access to legal services for the income groups that were not poor enough to qualify for legal aid but not rich enough to easily afford the costs of legal services. The evidence from the last two decades suggests, however, that LEI has been a qualified success in improving citizens’ access to justice. In general, it seems that the reformers had unrealistic expectations about the ease of developing LEI. The result is that while LEI is successful in some societies, the cost of legal services continues to be a problem for the ‘in between’ in many others. This article takes stock of LEI developments in a number of societies in the last two decades and considers its prospects for the future. First, it describes the development of LEI in a group of common and civil law societies. It demonstrates that LEI has fared best in the societies with civil law traditions but that the picture is more ambiguous in the common law societies. It concludes by highlighting some lessons to be learnt from these developments.
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    Giving cheek: ecotheologians speaking in a global age
    (International Institute for Public Ethics, 2002) Hallahan, Lorna Elizabeth
    In the second half of the 20th century Christian theology finally came down from heaven. Centuries old submerged traditions linking theologies of immanence and moral imagination have found new openings in new conversations. It is the nature of these conversations, particularly in ethics, that the author explores in this paper.
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    Which Truth? Australian identity - culture and politics.
    ( 2002) Simpson, Cheryl Ann
    Is it true to say that Australia is a tolerant, multicultural and open society? Or does it retain vestiges of a past steeeped in the idea of a 'white Australia'? Or is there truth in both images of the country? Perhaps the truth is that the image the nation wishes to portray is the former while there is another truth tucked away in the minds of many. The image of Australian culture as represented in the international arena takes two forms: that of high culutre, and the culture of everyday life. Cultural agreements between a number of countries emphasise the exchange of cultural activities which are generally referred to as 'high culture,' such as the visual and performing arts. The culture of everyday life is played out through the media and provides insight into aspects of government and our politicians. A critical examination of the images of Australian culture in its various guises indicates that the messages an international audience may receive are very mixed indeed.
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    Australian trade policy under the Howard Government
    (Center for Australian Studies, Chengchi University, 2002) Leaver, Richard Lawrence
    It is an open secret that APEC has, in recent years, fallen upon hard times. That secret began to circulate at the Vancouver APEC summit held four months into the Asian Financial Crisis when President Clinton casually opined that the whole event was really nothing more than 'a few little glitches in the road'.
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    Using electronic literature in online learning and teaching
    (Educause Australia, 2003) Burford, Sally ; Haggis, Jane ; McBain, Ian
    Academics have traditionally guided the reading of students to inject a range of scholarly perspectives into a course. The use of the literature is an important part of developing critical thinking skills and part of becoming a member of a discipline. The Flinders University Library's Electronic Reserve developments offer a way for teachers to deliver the literature of a discipline using internet technologies. Where distance education is provided in the online mode, Electronic Reserve has become an integral part of the learning environment. Access to a list of subject readings available on Electronic Reserve can be incorporated into a WebCT site. Alternatively, teachers can link to a specific article that may form the basis of a structured learning activity such as an online discussion. This open system incorporates material from several formats, principally electronic journals and scanned articles. Unlike the proprietary systems available it doesn't limit academics and students to the output of particular groups of publishers. Copyright compliance is managed by the Library. At present, copyright laws limit what can be provided from books but it is hoped that future developments in electronic books will overcome these restrictions.
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    Falling in love with litigation: The difficulties of reconstructing China's legal system.
    (Law Faculty, Monash University, Clayton, Vic, 2003) Regan, Francis
    China has undertaken a program of widespread legal reform since the end of the Cultural Revolution in the late 1970s. From the chaos and lawlessness of that period China has in the space of a quarter of a century re-established a functioning although imperfect legal system. However, the reconstruction of the legal system is creating a major headache for the reformers. Have the Chinese fallen in love with litigation? It appears that they have and to a degree that will seriously stretch the legal system.
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    The Power of Reconciliation in the Face of a Dilemma: Lessons from Business, War and Nature
    (Children's International Summer Villages (CISV), 2003) Tse, Terrence ; Kangaslahti, Vesa ; Seet, Pi-Shen