Teaching Law

Saturday, 28 April 2012

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".
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?

Saturday, 14 April 2012

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.

Wednesday, 11 April 2012

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?

Tuesday, 3 April 2012

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.