Head over to kategalloway.net for more blogging goodness

I've been posting on this blog since 2011. The time has come for me to upgrade my blogging platform - so now I won't be posting on this blog any more. You can still find me, however, over at kategalloway.net in my new online home. I'll be blogging as katgallow.

Thank you for visiting my blog here - and I hope that you visit me at katgallow.

Government v citizen: who is the vigilante?

In an action brought by Mackay Conservation Group, the Federal Court of Australia recently ruled that the Australian Government had failed to follow the law in granting approval to the Carmichael Mine. The Australian Government conceded this. The application will now need to be reconsidered by the relevant Minister in accordance with the relevant legislation.

Following this decision, the mining industry called on the Government to 'close the loophole'. The Prime Minister, Tony Abbott, criticised the Court for standing in the way of development and economic growth. The Attorney-General, George Brandis, called the action 'vigilante law'. Supported by the Industry Minister, Ian MacFarlane, the Attorney-General is planning to bring forward amendments to the law that prohibit environmental groups from appealing environmental decisions. The Industry Minister has said 'We're just saying if people live 600 kilometres away from a coalmine or from a development proposal, what right do they have to prevent that proposal providing an economic boost to the region?'

This post analyses this issue, arguing that it is the collective approach of the Prime Minister, the Attorney-General, and the Industry Minister that is 'vigilante' action. In particular, I argue that the concept of legality within our legal system is intrinsically linked with citizens' rights to challenge executive power. Importantly, the concept of 'standing' to challenge environmental decisions has an ancient connection with environmental sustainability.

Marriage Equality: Taking the Liberal out of Liberalism

The same sex marriage debate in Australia is deeply strange. On the one hand, advocates of 'traditional marriage' paint marriage equality as a radical departure from morality. On the other hand, those in support of same sex marriage argue that 'love has no boundaries'. Neither of these positions grapple with the rationale for the law's involvement in certifying relationships. Arguments on both sides of the debate could probably be satisfied by removing the certification of intimate unions from the law altogether. This need not interfere with religious or personal observances, otherwise known as 'marriage'. This is a radical solution outside the framework of the current debate. But it does highlight the inherent conservatism of both sides of the issue - where the legal institution of marriage has universal support. This can be seen in the arguments by both parties in the US Supreme Court decision of Obergefell v Hodges.


Accepting that the law's involvement in marriage will remain, this post seeks to unravel the different aspects of the marriage equality debate through the lens of liberalism. It has been the rather extraordinary process of the Federal coalition joint party meeting on 11 August that raises a lot of questions in my mind. In particular, I wonder about what this debate says about the law and political process, and what it says about liberty and the operation of government control over personal actions.

Landholders' right to refuse: Protecting property

Landowners may get the right to refuse entry to miners

Senator Larissa Waters has introduced a private members bill into the Senate to deal with the stand off between landowners and miners, and to stop fracking. The Landowners Right to Refuse (Gas and Coal) Bill 2015 ('Bill') seeks to achieve two aims (section 3):

• To stop hydraulic fracturing (‘fracking’) by constitutional corporations; and
• To require informed landholder consent to entry onto land for the purpose of gas and coal exploitation.

The legal issues underlying the Bill’s aims are twofold. First is the Commonwealth power to legislate for land use and mineral exploitation, both of which are a state concern. I won't be dealing with this issue here, assuming the Commonwealth's corporations power enlivens its jurisdiction.

Of interest to me is the second question, of framing rights between two interest-holders in the same land: the miner and the landholder. Miners’ rights are directly derived from the State and are an expression of the bounds of the State’s original grant of land. Therefore this second question potentially involves redistribution of the boundaries of ownership between the State and the landholder. I have made a submission to the Senate Environment and Communications Committee that focuses on the latter issue of distribution of property rights between miners and landholders, and the purpose of the Bill in terms of property. I use Queensland law to illustrate my argument.

The case for a bill of rights in Queensland

 

Unlike many jurisdictions internationally, neither Australia nor the states operate under a bill of rights - with the exception of Victoria and the ACT.  While there is currently an investigation into 'traditional' freedoms at the instigation of the Commonwealth Attorney-General, there is no sign that a bill of rights will be coming any time soon at the national level. Indeed it is Coalition policy to do away with the human rights framework. The Prime Minister is reported as having said: 'Bills of rights are left-wing tricks to allow judges to change society in ways a parliament would never dare.'

But the question of a bill of rights can be framed a little differently in the Queensland context. Perhaps in recognition of that, following the 2015 Queensland election the government has indicated that it will seek advice from the Department of Justice and Attorney-General to allow 'public discussion' on the question of a bill, or charter, of rights. I think a public discussion on a bill of rights in Queensland is important and overdue. In this post I explain why.

The gift: characterising exchange within intimate relationships

 

I am presently working on chapter two of my thesis on intimate partner constructive trusts. My thesis explores the gendered nature of the law in this area, asking whether it effects a just distribution of property between spouses - through equity, not through statutory family law. In this chapter I establish that the law focuses on the parties' acquisition of the matrimonial home in a way that privileges the parties' exchange in terms of a transaction. The reason for the law's inconsistency over time in my view, is because the acquisition of the home is an aspect of a complex relational exchange. The law thus falls short of encompassing the relational aspects of property distribution.

The law's emphasis on transactions is a manifestation of market liberalism and is hardly surprising in Australian private law. However while the transactional approach may serve a purpose in a commercial market context it demonstrates the poverty of legal thinking in terms of a just property distribution within an intimate context. 

In working on chapter two of my thesis I have read Richard Titmuss' The Gift Relationship (1970). In this post I set out some early thoughts on the utility of Titmuss' work in terms of explaining distribution of finances, property and services within an intimate relationship. I note that there is a considerable literature following publication of Titmuss' work in 1970, but this post relates only to my initial reactions on reading this text.

And now for something completely different: Statutory interpretation

And now for something completely different*

I started my LLM thesis when I was still in private practice. My thesis was designed to tackle a very practical black-letter law problem I had encountered in my practice as a property lawyer. In analysing the issues however, I branched out way beyond my comfort zone into some theoretical areas - law and economics, feminist legal theory and critical legal studies. Before developing my thesis proposal I had not even known that such things existed. This was a product of my largely doctrinal undergraduate experience and my immersion in commercial law practice.

During this time however I read Nick James' 'Brief History of Critique in Legal Education' - before I knew that legal education was even a thing. Now that I know a little more about legal education, Nick's paper continues to inform my thinking. It is a useful reminder to me that despite the monolithic appearance of the law and the appearance of solidity of the term 'the profession', that they are subject to change. As Nick's paper makes clear also, Australian legal education has been characterised by shifts between the practical and the academic, culminating in the ascendancy of the professional legal academic.

The degree remains subject to judicial oversight through the Law Admissions Consultative Committee ('LACC'). Its structure, moreover, must conform with the so-called Priestley 11, the 11 core subjects considered to represent the cohesive body of discipline knowledge requisite for legal practice.

Since the Priestleys were mandated in 1992 there have been a number of seismic shifts that have generated debate about their utility and relevance. There are greater numbers of law students not going on to practice; increasing globalisation of legal practice; increasing specialisation of practitioners; and growing emphasis on legal skills and soft skills rather than doctrinal content alone. LACC is presently considering whether to do a small adjustment to the Priestleys, but the question I'm interested in pursuing here is possibility of a Priestley 12 - the inclusion of statutory interpretation.

Has the Queensland election offered a reprieve for the environment?

I wrote late last year of changes to Queensland's Water Act. The Water Reform and Other Legislation Amendment Act was passed on 26 November 2014, and proclaimed on 5 December. The changes included a shift in the Act's purpose from one of sustainable management of water, to one of efficiency and productivity in water management. This underlines the tenor of the substantive provisions which include 'reducing assessment and regulation of water taken by mining projects.' Both environmentalists and farmers have criticised the amendments, in recognition of the risk for local and regional environment and farming. The amendments have also been criticised for their likely adverse effects on the Great Barrier Reef.

While the amending bill was passed, not all parts of the Act have come into force. Under the amending act, changes to the Water Act will come into force on a date to be proclaimed. According to the Department of Natural Resources and Mines, the staggered commencement dates for different parts of the amending act are to ensure the 'Department's systems are ready to support these reforms.'

Only a matter of weeks following the commencement of the amending act, the Newman government called an election and lost. In the meantime, the Water Act amendments have not been proclaimed. If nothing further occurs, the Water Act changes will become law on 6 December 2015, through the application of the Acts Interpretation Act.

On the basis that the ALP spoke out against the changes, it is hoped that the relevant provisions will be repealed before they come into force.