Faster, higher, sexier: women in sport

Sportswomen in the media - as rare as unicorns*

Sports writers Phil Rothfield and Darren Hadland, in a ‘lighthearted review of the year’s sports highlights’, today declared Black Caviar, a horse, as ‘Sportswoman of the Year’.

Their 'Sportsman of the Year' is the Australian cricket captain, Michael Clarke.

In response to outrage on social media, Rothfield pointed out that Black Caviar is a girl and implied that the piece was funny.  Unfortunately, as Wendy Harmer has so effectively pointed out, this is wrong.  He is possibly wondering why so many are so angry.

Buying a book: How hard can it be?

Books as things no longer?*

The news this week that ebooks purchased from Barnes & Noble will self-destruct upon the expiry of the purchaser’s credit card, again raises the question of what exactly is an e-thing, and what are we buying.

I’ve written before about the nature of virtual goods at law, and whether they constitute property or not.  The issue here is related.

Is my body my own?

Sadly, late last month, an Indian woman, Savita Halappanavar, died of septicemia in an Irish hospital.  The source of her infection was her dying foetus.  Yet doctors refused her the termination that would save her life, because the dying foetus still had a heartbeat.  The life of this woman ended because, in accordance with the teachings of the Catholic Church, the 'life' (such as it was) of the foetus was paramount.

While press reports indicate that in Ireland obstetricians have a duty to act in the best interests of the mother, there is apparently a lack of clarity in this jurisdiction as to when the medical profession can intervene lawfully.

This case highlights, yet again, the issue of bodily integrity for women and the extent of State intervention into women's autonomy over themselves.  This concern is not limited to Ireland, but exists around the world.

Learning Land Law - and More

The mountains surrounding Cairns

Most legal practitioners when hearing 'land law' mentioned will roll their eyes.  Renowned as one of the most boring and archaic of the sub-disciplines taught in the law degree, they will recount their nightmares about the rule against perpetuities, future interests, and the doctrine of tenure.

But what if land law were taught differently?  What if land law, rather than representing an archaic and irrelevant list of rules were viewed through a different prism?

I confess to having practised in land law (property and commercial law and some native title) for some 16 years, and to having taught it since 2004.  But in all those years of experience, it is clear to me that this subject remains central to our understanding of the common law.  The subject lies at the intersection of law and sustainability - sustainability of governance, of society and culture, of the economy and of the environment.

Contempt for Women in the Public Sphere: A New Low or an Old Trick?

Feelings are still running high about Shock Jock Alan Jones’comment on Friday that women (ie the Prime Minister, Julia Gillard, Sydney Mayor Clover Moore, former Victorian Police Commissioner Christine Nixon) are ‘destroying the joint’.

Tory Maguire, writing in The Punch, suggests that feminists should save their energy for 'battles that might change something'.  I agree with her that it is unsurprising to hear Alan Jones make derogatory statements about women, and I agree that it becomes wearing to expend our energy on each insult leveled at women in the public sphere.  (And there have been a number of them this week.)

I do think however that concerns about women who do not have the power of the Prime Minister, Sydney Mayor or a state Police Commissioner; concerns about access to safe abortion and employment conditions, are all related to the increasingly public vilification of women - including women in power.

My question is why, in 2012, are women belittled in this way.  To ascertain this, let’s be clear: first, that it is women (not individuals) who are targeted; and that it is designed to belittle.

A Husband's Sacrificial Love and the Law

 

Sacrificial love: Just for husbands?*

My last post here concerned the change to wedding vows in the Sydney diocese of the Anglican Church.  Under the change, women can now 'submit' to their husbands, rather than obey. This is appropriate, apparently, because:

The husband's love is one of sacrificial love, and to submit to that kind of love is not oppressive, but is actually a joy and a great freedom.

Since this story, an Anglican minister from the Sydney diocese has released a paper upholding 'male headship [as] part of God's good ordering of all society - not just His Church' and suggesting that Christian women in leadership roles should only take such roles if they are prepared to adopt an appropriately masculine leadership style.

While both of these stories represent a view of women that holds no sway in the context of contemporary Australian life, they provide an excellent opportunity to re-evaluate the law and its assumptions.  Despite anti-discrimination legislation and other measures to uphold the status of women - not as submissive to 'male headship', but as autonomous legal actors in their own right - the law remains imbued with presumptions originating in these dated paternalistic Christian beliefs.

Why 'Submitting' is a Dangerous Development

The Anglican church in the diocese of Sydney is changing the wording of its marriage service to provide, optionally for couples who choose it, for the wife to submit to the husband.  This replaces the old vow for the woman to ‘obey’ – made optional in the Anglican rite in 1928.  

It is not my place to critique religious rites so long as they occur within a church context between consenting adults.  However the Marriage Act 1961 (Cth) provides that those who are recognised ministers of religion of a recognised denomination, are empowered to solemnise marriages under the Act.

Because marriage is an institution of law, ministers of religion are in my view effectively agents of the state in terms of solemnisation of marriage.  It is concerning therefore that wives may undertake to submit to husbands in a legal process, even one that occurs within a church.  This is so for two reasons.

What's so hard about consensual sex?

In my guest post today on Amicae Curiae, I pose this question in response to the apparent global putsch to twist the meaning of 'rape'. Find the post here.

Women in Queensland. Back to the Future.

The public and private lives of women have come under scrutiny in Queensland in the last couple of months, including in a series of statements by LNP parliamentarians and advisers.  What is the status of women in Queensland in mid 2012, a few months after the swearing in of the Newman government?

Thinking Like a Lawyer – the Good the Bad and the Ugly

First year law students are invariably regaled with the mantra of learning to think like a lawyer: that law school is all about developing this skill.  As some have identified, 'thinking like a lawyer' is a nebulous concept at best, or at worst, a 'self-aggrandising sham...to justify the existence of a...special lawyer class'. 

There is however a mounting body of evidence to show that the culture of the law, including the way that lawyers think, is linked to stress experienced by law students and legal practitioners alike. (For example, see here and here.) 

While this creates issues for the sustainability of the legal profession as it sees an exodus of early- and mid-career practitioners, and women in particular, I believe it also takes a toll on the personal lives and relationships of lawyers.

Property and Procreation: Problematising Sperm

Recently in the US, bills have been sponsored in a number of states providing for personhood for sperm.  One bill, for example, provided that ejaculating anywhere outside a woman's vagina constitutes 'an action against an unborn child'.  These bills were put up in response to legislation regulating women's reproductive rights - curtailing women's access to contraceptives and abortion.

The law in the US (and elsewhere) continues to regulate the reproductive rights of women with wide acceptance that this is appropriate.  In contrast, the 'sperm bills' are considered satirical.  It's OK to regulate women's reproductive rights, but patently ridiculous to regulate men's.

This shows that reproductive rights and regulation of gametes is obviously a complex issue for the law. (See my previous post here)

This complexity is borne out through a comparison of a recent Canadian decision (JCM v ANA), a forthcoming Canadian case (deBlois), and a 2011 Australian decision (Edwards). (I've written about this case here.)  To what extent does the law recognise rights to sperm, in terms of property; procreation; and parenting?

A Reflection on the Mabo Case

There has (rightly) been a lot of celebration and a lot of discussion in the mainstream media and social media about today, Mabo Day - the 20th anniversary of the landmark High Court decision that has changed the course of land rights in Australia, and a few other things also.

I've been reflecting on the Mabo decision and what it represents for me - a non-Indigenous Australian property lawyer.  To me, the case is about subverting the legal system; it's about representations of identity and how we invest power in the law to do so; and it's about creative thinking - particularly creative legal thinking.

Businesses, boats, securities...

This recent post by Marshall Chambers looks at personal property and the issue of security interests under the new Personal Property Securities Act (Cth).  I suspect that we will hear more of this Act as it settles in.  It seems to have faced a few teething problems in terms of reliability of the register system in its first weeks of operation. It will be interesting to see if any disputes arise out of this, and how they will be resolved.

Getting in (to practice) and staying in... How hard can it be?

And meanwhile, in the world of cultural capital, I posted as a guest on Amicae Curiae recently on what women - and men - wear to work and whether it matters.  Personally, I believe it does matter.  Simon McKay has posted this week too on cultural capital (though he doesn't use the term) in terms of entry to the profession.  See what you think.

Ode to Property Law

Have a look at this great post on Skeptic Lawyer about property law and its meaning. Brought a tear to my eye...

What is the ‘Truth About Marriage’?

...Right-faction powerbroker Joe De Bruyn said marriage had been the union of a man and a woman ''since the dawn of humanity''...

...The Australian Christian Lobby reacted swiftly to the resolution, saying the party - in defiance of Ms Gillard - had chosen to be on the "wrong side of truth".

(The Australian, 3 December, 2011)

These comments by Joe de Bruyn in 2011 piqued my interest.  As I’ve written here before, marriage is, in my view, an institution of the law that seeks to subjugate women.  In a related context, in my view, it is a relationship concerning property.  Yet there is a very strong notion that marriage is so much more than this.

I have no opinion on private or religious views of marriage within the context of religious practice or how one chooses to celebrate it with one’s family and friends.  My interest lies in the legal construction of this private relationship – and de Bruyn’s comments, as with all comments in the same-sex marriage debate, occur in the context of law-making.

So I’ve been doing a little reading into the context of marriage and its regulation by the law.  I’ve a long way to go in learning about this complex institution, but even a preliminary overview provides some interesting contrast to the bluster of the political debate.

Is it true that marriage has been between a man and a woman since the dawn of humanity?  If you consider this as a moral or religious question, it need not enter the legal debate.  In the context of the law, I think that this is the wrong question.  I think that the right question is: since when has the law been so certain about its role in marriage, and in what circumstances?

Don't Throw the Baby out with the Bathwater: Work Placements for Student Learning

It was reported this week that the Fair Work Ombudsman was to launch an inquiry into unpaid internships to determine the place of such arrangements within employment law.  Certainly the reported stories told by students who have been exploited are indicative of a need to shore up the framework within which such work occurs.

In a passionate blog post, boeufblogginon wrote about the imperative to stop the exploitation in this field.  She pointed to the compulsory nature of such work experience for university qualification, and that:

For universities it has become a way of saving money. By including internships as a core “subject”, the university doesn’t have to pay for face to face teaching, but the internship will still generate income from these student hours for the tertiary institution concerned.

I have no quarrel with the importance of ensuring that students are not exploited, and ensuring that such internships take place in a way so as to protect students.  I do not dispute that many have experienced the kinds of dreadful conditions reported in the media, and by boeufblogginon. 

What I seek to do in this post is to highlight the genuine opportunities for work integrated learning that exist for students in universities around Australia.  In investigating abuses of the system, in my view it is important not to throw the baby out with the bathwater so to speak, and to ensure that we can continue to provide the opportunity for students to have supervised (and safe) learning opportunities in the workplace.

What is Work Integrated Learning ('WIL')?
I've used the definition of WIL from the Innovative Research Universities brochure.  (My own university is a member of this group.)

WIL stands for work integrated learning, an umbrella term used to describe a range of approaches that integrate theory with the practice of work within a purposefully designed curriculum. The most common form of WIL involves a student placement or project within a workplace. Universities, students and employers work together to design and create a learning experience that benefits all parties.  The student’s progress and learning outcomes are monitored and assessed by the university, with input from the employer.

Crucially in this definition are the terms 'purposefully designed curriculum' and the 'benefit (to) all parties'.  While the implication in boeufblogginon's post is that there is no educational input from the university, a WIL subject that incorporates work placement requires intensive educational input and is a deliberately designed and assessed program.  While in such programs there is no payment to the student, the credit points attaching to the subject will (in my experience) reflect the expected number of hours per week spent on that subject.  This would include time spent in the workplace as well as assessment tasks.  The placements are therefore not 9-5 daily.

Additionally, it is my understanding that for a subject to satisfy the HECS requirements, it must be educational and therefore supervised.  The university cannot claim as a subject an activity that has no educational validity and no university input or supervision.  That is not to say that there are institutions that fail this requirement.  However part of an inquiry into internships may need to canvass the ways in which universities are accountable for the educational design of such placements.

Is WIL exploitation?
It is possible to see WIL as a form of cheap (free) labour or exploitation in terms of financial reward, or as boeufblogginon pointed out, in terms of some kind of barter.  On the other hand, if it is seen as an educational opportunity (ie to advance student learning) then the perspective shifts.

In terms of the personal experiences of students that have been reported in the media, and as cited by boeufblogginon, there appears to be little if any educational component and these would naturally tend to support a claim of exploitation.  The power imbalance alone is sufficient to warrant such a claim. 

All I seek to do here is to differentiate a genuine educational opportunity (WIL) from these other experiences.

How is it educational?
There are a number of different types of WIL.  Examples are provided on the IRU website.  The one kind of WIL that I have observed (though not supervised) is a law work placement subject.  The coordinator identifies work places and gauges interest.  They provide a comprehensive information package to the employer about expectations and how the program works, and interviews each supervisor.

Students enrolled are first required to reflect upon what they would like to learn from their placement based on what they don't really know about the law or about practice.  Students formally apply to the workplace and are interviewed.  Students negotiate their own outcomes with the employer, and these are discussed with the coordinator.  The outcomes in the workplace will align with what the student seeks to learn.  The student is required to reflect periodically on their placement, identifying what they are learning as they go, interacting with fellow students and the coordinator.  They receive feedback from the coordinator along the way.  Reflection is identified as a key generic skill in the contemporary university graduate.

At the end of the placement, the students present a portfolio representing their learning and experience in the context of their work (naturally not breaching confidentiality).  The employer also provides a report confirming compliance with the placement requirements (though this is not assessed).

Feedback from students is overwhelmingly positive.  Likewise, my colleagues in the profession who have supervised students are keen to continue.  While not all students secure paid employment from the experience, some have.

Appropriate boundaries
Subjects such as the one I have described, or other WIL programs elsewhere, should be open to scrutiny.  Because they are part of an educational qualification, such programs must be educational and be designed to promote student learning within the discipline. 

There is no room for the kinds of exploitative internships quoted in the media, and particularly not in the context of higher education.  However in ensuring proper protection for students undertaking internships, thought needs to be given also to legitimate workplace participation for student learning.  Hopefully the inquiry will clarify for educators, students and employers just how we can appropriately provide such opportunities.

Is it Possible to Steal Virtual Goods?

According to media reports, a court in the Netherlands has recently upheld the conviction of a boy who stole another boy's 'virtual goods'. These are items used in an online computer game, that have no tangible form.  This raises the question of whether or not ‘virtual goods’ are property.  In the Australian context, I am inclined to think that they are not.  I think that this highlights the limitations of our system of classification of property.

 

An attempt to explain online gaming

Disclaimer: I am not a gamer myself, and therefore possibly have a fairly simplistic view of what goes on…  

The idea of virtual goods arises in online gaming.  My understanding is this.  A person writes some kind of program that allows many people to connect via the internet and play a game online.  The game involves a quest of some sort, and as a result of winning one may acquire ‘prizes’ within the context of the game.  In the online environment, these have a visual form and are used to advance in the game.  It is possible also within the context of the game to earn points that take the form of game money.  This money can likewise be used to acquire virtual goods, again in the context of the game. 

The ‘money’ and ‘goods’ in this context have no existence outside the context of the game and are created through the author’s code.  So are they property?

How the Law Constructs the Environment: The Wandoan Coal Case

The Wandoan coal case (Xstrata v Friends of the Earth [2012] QLC 013) handed down last week shows how far our property law and environmental and resource management systems need to evolve to deal effectively with contemporary and future environmental issues.

It is acknowledged that climate change is a global problem (and indeed the parties in the Wandoan coal case did not dispute the science of climate change).  It is not the first global environmental issue – acid rain and the pollution of the world’s great rivers are examples of other, earlier inter-jurisdictional environmental issues.  Unfortunately, the evolution of environmental law in Australia, as elsewhere, exists still in a political era of sovereignty and control over a nation’s own territory or in the Australian context, that of a State.  The territory does not represent anything outside the context of law.  This construction of ‘the environment’ limits the law’s ability to deal with incremental and cumulative impacts of activity within a territory, on an otherwise interconnected world.

This territorial approach to the environment is compounded by the compartmentalisation of land into differential resources each with their own regulatory regime – for example, minerals, water and vegetation.  (I have written on this before.)  This further reduces the way we think about environmental impact of human activity into a variety of policy approaches, regulatory and licensing frameworks and ultimately different procedural jurisdictions.  Therefore while the environmental impact of one project may have various effects on the environment, the law may treat each aspect of the activity under a different regime.  This is an unrealistic way to understand and deal with the environment.

The law’s construction of ‘the environment’ in terms of a series of independent resources within a boundary determined by law is illustrated by the decision in the Wandoan coal case.

To Change or Not to Change? That is the (Constitutional) Question

On 19 January, the Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples ('Panel') delivered its report Recognising Aboriginal and Torres Strait Islander peoples in the Constitution.  Since the Panel was convened, there has been a lot of comment and public debate - mostly, it seems, centred around the legal implications of constitutional change.

If you are, like me, not an expert in constitutional law, your head may be spinning trying to keep track of the pros and cons of the recommendations.  What then are the primary recommendations for change, and how on earth do we sort through the legal arguments?  In this post, I go out on a limb and say that we need to focus on the goal of constitutional change and let go of the law.

Bats, Dangerous Creatures & Domain Over Land

Bob Katter has recently called for landowners to have 'control over his (sic) backyard'.

"So if he decides to remove a deadly animal, like this bat up here, or a snake, it's his backyard, not the crown's. 

In Mr Katter's view:

"As a race of people we have moved away from (the idea of) 'this backyard belongs to us'."

What I take his meaning to be is that the state has too much regulatory power over activities undertaken upon freehold land.  That is, he is seeking a more libertarian approach in terms of elevating private property above state intervention.  In other words that a person's home is their castle.

Women's Bodies, the Law and Media

In the last couple of weeks I've commented on a variety of media reports concerning how women should look and how the law impacts upon women's bodies, as a guest of the blog Amicae Curiae.  You can read these posts on the links below.

I Know What Boys Like

Who Controls Women's Bodies

Husband and Wife are Two Souls in the One Flesh...

It hath beene resolved by the Justices that a wife cannot be produced either against or for her husband...[for they are two souls in one flesh], and it might be a cause of implacable discord and dissention betweene the husband and the wife, and a meane of great inconvenience. (Lord Coke, 1628, cited in David Lusty, 2004)

As a result of the Biblical principle that husband and wife are 'two souls in one flesh', there is a common law tradition whereby women may not be obliged to give evidence against their husbands. This principle has apparently extended to apply to men giving evidence against their wives.

There are different bases on which a person may be required to or be excused from giving evidence.  Their competence differs from their compellability which differs from whether privilege attaches to their evidence, once they are giving testimony.  I am not seeking to explore these legal differences - and for the purposes of this post, will refer to these laws by a non-technical use of the term 'privileges'. I recognise that this term in itself has in part created the ambiguity in aspects of the common law in the area of spousal privileges.


The issue of spousal privilege has recently arisen in Australia, in the 2011 High Court decision Australian Crime Commission v Stoddart.  This decision found that (the technical legal) spousal privilege does not exist in Australia.  (Others have discussed the case: eg here and here.) However the case did, particularly in Heydon J's dissenting judgement, discuss the nature, genesis and evolution of spousal privileges (in their generic sense). 


While I have little, if any, expertise in the law or practice of evidence, what interested me about this topic and the High Court's recent decision on it, was the foundation of spousal privilege laws - that husband and wife are 'two souls in the one flesh'. In considering the idea of spousal privilege laws and the Court's approach to them, I am therefore interested in the notion of status-based laws, and their implications.

Sex & Immorality: The Court's Take

Early this year, the Supreme Court of New South Wales handed down its decision in Ashton v Pratt.  This was an action by Ms Ashton to enforce a promise made by Richard Pratt - director of Visy Industries and well known philanthropist.  The Court accepted (though somewhat reluctantly it seems) that Mr Pratt had told Ms Ashton that he would establish trusts of $2.5 million for each of her two children, pay her an allowance of $500,000 per year, pay up to $36,000 per annum for rental accommodation for her, and pay $30,000 per annum for her business expenses, particularly travel. [para 28].

In exchange, Ms Ashton agreed not to return to the escort industry, and provide services (non-exclusively) to Mr Pratt as his mistress on occasions when he was in Sydney.

In spite of the Court finding that such a promise existed, it refused to uphold the promise.  Others have commented on the decision - eg here and here - however what interests me in particular is one basis for this refusal; that even if there were a contract, the Court would not enforce it on grounds of public policy.  The question that springs to my mind is why the law would still presume to find an apparently consensual sexual relationship - for money or otherwise - immoral to such an extent that it fell foul of 'public policy'.

Professionalism and Sustainability in Lawyering

I have not long returned from the beautiful city of Vancouver in Canada, having attended the eighth International Conference on Environmental, Cultural, Economic and Social Sustainability.  What has been interesting about the conference has been the capacity of quite diverse academic and professional disciplines to converge in terms of their theoretical approach.  That is to say, each presenter at the conference offered the opportunity to re-imagine an aspect of our world in terms of sustainability.

One aspect of thinking about sustainability that struck me in particular from a number of presentations is the dimension of what I'll call professional thinking.  For example one speaker discussed the effect of sustainability assessment tools in architecture competitions on the design of sustainable buildings.  Her point, as I understood it, was that a more 'checklist' approach to architecture may detract from a more wholistic or qualitative approach.  The latter approach would take into consideration factors that could impact (positively) more completely in terms of sustainability or eco-design.

Another speaker discussed the role of tertiary education in teaching our teachers.  Amongst his points was that our graduates need humility and gratitude: teaching involves gratitude for the opportunity to serve and is humbling in the recognition of the centrality of the teacher's role.  Such attitudes, in conjunction with a keen sense of community, lend themselves to a philosophy and approach as a professional that embody interconnectedness and engagement with both community and the natural world - preconditions for educating youth in and for sustainability.

Both these discussions resonated in terms of legal education and indeed the practice of law.  The revision of the LLB at my own institution involves embedding sustainability as an overarching concept: a lens through which to learn the content mandated by our professional bodies.  But importantly, it also provides a pedagogy or a strategy or approach for teaching that aligns with what I took from the two discussions above.

The legal profession in Australia has for some years been asking why so few women are partners in private practice; why there are so few non-metropolitan practitioners; why (law) student wellness is such an issue; why there are high reported rates of practitioner mental unwellness...

Based on these now well-known issues, there are moves in legal education to incorporate different ways of teaching law: methods of teaching that encourage resilience, a reflective approach to practice and self-management.  These intersect with a greater emphasis on ethics - a move away from a traditional approach to ethics as a set of professional regulatory rules, to a more embedded approach that incorporates also 'soft' skills in communication and a more qualitative understanding of the nature of professionalism.  It seems that the academy and the profession is in agreement about the need for a new approach (see eg here).

And so to what I took from the speakers at the sustainability conference.  If we continue to teach our law students rules without context, and abstracted legal reasoning without attention to self, we run the risk of leaving a profession that is unsustainable. One which cannot support the justice system and serve society. One in which it is not sustainable for individuals to continue to practise.   Sustainability is a complex concept and poses particular problems for lawyers who prefer to have a tight definition; and who see sustainability in law merely in terms of environmental regulation.

Sustainability is much more than this.  It relates to our world and our place in it.  It relates to law as justice in both human, environmental and ecological terms.  It relates to our profession and to society; practitioner and client.  It relates to our personal and our professional self.  All of these aspects are inter-related and it is our responsibility to educate professionals who have the capacity to understand this and to experience these facets in a wholistic way.

Knowing laws does not make a professional and as with criteria for an architecture competition, adherence to a checklist of laws will not address wider and contextual issues that represent the essence of lawyering.  As with teacher education, humility and gratitude embody the intersection of personal and professional, or two sides of the same coin.  Our students deserve the opportunity to engage in their development during their study of law, and our profession and society deserves graduates who have this capacity.

The Invisibility of Marriage

Marriage can construct visibility

By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection, and cover, she performs every thing (Sir William Blackstone, Commentaries on the Laws of England. Vol, 1 (1765), 442

In the contemporary debate in both Australia and internationally over same-sex marriage, I have been torn between my antipathy towards the institution of marriage and my desire to see a more inclusive society. In this post I consider this tension in an attempt to articulate a consistent basis from which to understand ‘marriage’ in a way that respects all as individuals in their own right and likewise affords respect at law to the domestic partnerships they enter into.