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. 

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.

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.

How Queensland is failing to measure up to standards of accountability

Checks and balances at risk in Queensland*

Following its findings of extensive corruption in Queensland government and police service, the Fitzgerald Inquiry recommended an independent body be established, charged with investigation of corruption and crime in Queensland. 

Detailed analysis of the various common instances of other prevalent official misconduct is not called for in this report. It is sufficient to record that the evidence before this Inquiry plainly established common and, apparently, growing manifestations of other official misconduct and its central importance in facilitating major and organized crime.

The seriousness of that other official misconduct must not be overlooked. Rather it is the plainest demonstration of the need for the researched and integrated approach to organized and major crime mentioned earlier in this report.

One possible model explored by the Report was an independent commission against corruption. This was rejected because of the myriad tensions inevitably associated with it. Instead, a Criminal Justice Commission ('CJC') was recommended, to be overseen by a parliamentary Criminal Justice Committee [Part 10.2]. In 2002, the CJC merged with the Queensland Crime Commission to form the Crime and Misconduct Commission ('CMC').

As the functions of the original CJC have evolved, it is instructive, particularly in light of recent political events in Queensland, to revisit Fitzgerald's discussion of the tensions and challenges in having an independent commission against corruption. Many of his observations seem pertinent to the CMC and its relationship with the government.

In this post I will use Fitzgerald's report to provide context for why developments in Queensland are so troubling.

Forced removal of children. When will government learn?

Today's media contains the sobering news that an asylum seeker known as Latifa has been detained separately from her week old infant Farus, who is suffering respiratory problems. She is permitted to visit him between 10am-4pm but is otherwise detained with her husband and two other children. Farus' father has not been permitted to visit.

The reaction to the treatment of Latifa, Farus and their family has focused on the cruelty of separating a mother and sick infant. I agree with this assessment, but I am always interested to observe the essentialising of women's role as mother. I think that it is worthwhile to look more deeply into this picture to tease out what values are at stake in our government's treatment of this woman, her child and the child's father.

Is the Queensland government man enough to really get 'tough on crime'?

The Queensland government has launched a new phase in its 'war on bikies' through a raft of new regressive legislative provisions that criminalise association and provide for mandatory additional sentencing and automatic refusal of bail. In its 'unapologetic' 'crackdown' on 'criminal gangs' the government acknowledges that there will be 'some inconvenience' to law abiding citizens, but that if we have 'done nothing wrong, there is nothing to fear'.

In this post I ask why, if the government is really serious about getting 'tough on crime', it is not engaging in open discussion about, and introducing 'tough new measures' to deal with, domestic violence, sexual violence, violence against women. Is the law and order agenda in Queensland a gendered one?

Are there boundaries to freedom of contract?

Contract law recognises the application of power

Does contract as we know it continue to exist? That it may not is a fairly bold proposition...greatly discussed of course since Grant Gilmore's 'The Death of Contract' in 1974. Gilmore argued that:

The most dramatic changes touching the significance of common law in modern life also came about, not through internal developments in common law, but through developments in public policy which systematically robbed contract law of its subject matter…removing from ‘contract’ transactions and situations formerly governed by it... [p6]

In August this year, a Queensland Court of Appeal decision provided evidence to support Gilmore's thesis, upholding a purchaser's right to end an otherwise valid residential land purchase. The reason? The vendor's solicitors, in sending the contract to the purchaser's solicitors, failed to draw their attention to the warning statement attached to the front page. This breached s368A(2) of the Property Agents and Motor Dealers Act 2000 (Qld) ('PAMDA').

Does this provision, and its interpretation, really protect consumers? Or is it instead a blunt instrument that erodes all the assumptions we make about the foundations of contract law?