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.

Lady Budgets: An Explainer

Every woman's dream*

The Prime Minister, Tony Abbott, again today finds himself the subject of attention following comments on a morning TV show. Asked for his greatest achievement yet as the Minister for Women, the PM said that it was 'repealing the carbon tax'. He went on to say:

'As many of us know, women are particularly focused on the household budget and the repeal of the carbon tax means a $550 a year benefit for the average family.'

Foreign Minister Julie Bishop, who herself does not view the world through the 'prism of gender', defended the PM by saying 'women's policy is everyone's policy'. She is of course correct. We would all benefit from advancing women's interests, giving substance to formal equality, ending feminised poverty and violence against women. Except that there is one thing remarkably absent from the PM's statement and indeed the government's own policies. And that is women themselves.

The PM's statement is a clear statement of the government view that equates women's economic standing with that of the household. This is incorrect and reinforces women's dependence at a structural level.

Law reform is a 'frontline service'

Integrated frontline services

Under the Legal Profession Act 2007 (Qld) ('LPA'), the Minister may approve grants for the purpose, amongst other things, of 'the advancement of law reform.' Grants come from the Legal Practitioner Interest on Trust Accounts Fund ('LPITAF'). In 2012 the Attorney-General ordered a review of the application of these funds ('LPITAF Review'). The focus of the review was the alignment of fund distribution with the government's strategic objectives of 'front line' service delivery.

On 26 November, the Queensland government introduced the Justice and Other Legislation Amendment Bill 2014 ('Bill'). The omnibus bill seeks to amend over 30 Acts including s289(1)(h) of the LPA - the provision for grants to advance law reform. Instead, the proposal is that funds may be applied under this subsection only for the purpose of:

facilitating access to the legal system, legal information and education and legal services for members of the community, particularly economically or socially disadvantaged members of the community.

This captures many of the previous purposes of the grants, but not the advancement of law reform.  The Bill states that this amendment

reflect[s] changes as a result of the implementation of recommendations resulting from the Review of the Allocation of Funds from the Legal Practitioner Interest on Trust Accounts Fund

The LPITAF Review, however, did not recommend removing law reform from the purview of the fund. Even if it did so, this amendment ignores substantial evidence about the strategic nature of investment in law reform work in the efficient and effective delivery of justice, particularly to economically and socially disadvantaged members of the community.

In other words, the proposed amendment directly contradicts the government's stated strategic objectives. This proposed amendment should be rejected.

Planning law is not property: Sea level change in Queensland

The Torres Strait is already suffering sea level rises*

Queensland's Infrastructure Minister, Jeff Seeney, has ordered a local government authority to remove from its regional plan any references to climate change induced sea level rise. The stated objective of this directive is 'to ensure residents' rights to build and develop their properties were maintained and not restricted by their local council'. The Minister confirmed that he had intervened to protect property rights.

I suggest that instead, the Minister has a confused understanding of appropriate government authority to regulate land use, thus undermining government's own legitimacy in this area. Additionally he has generated a dissonance between the real-world market practice of insurers and the ideological myth of property as dominion. In doing so he may be exposing the local authority (and state government) to liability in the future. All in the name of property.

Does his argument have foundation? Or does it simply reflect an ideological position?

Changing Academic Requirements for Lawyers - Yes Please!

 

Better get a lawyer, son.

The Law Admissions Consultative Committee ('LACC') has called for submissions in its review of the academic requirements for admission to legal profession in Australia ('Review'). The Review is the latest in a series of discussions and mini-reviews over the past decade or so about Australian admission requirements. This has occurred largely against the background of calls by the judiciary for more emphasis on statutory interpretation in Australian law schools. The sequence of events: reports, submissions, recommendations etc as to statutory interpretation is canvassed in the Review.

At the same time, the Australian Productivity Commission has handed down a report into access to justice ('Report'). Chapter seven of the Report covers legal education and makes recommendations including that the Priestley 11 be reviewed (recommendation 7.1). The Priestley 11 are the core academic requirements for admission to practice in Australia, and must be taught by a law school to become an accredited degree.

The Report and the Review are interesting to read together. While obviously they are addressing different purposes, they contain inconsistencies that perhaps lay bare the conflicted status of the law degree. I might observe that Margaret Thornton has been exposing this for some decades now.

In this post I will focus on the LACC Review. In particular I respond to some of the questions it poses about the academic requirements. As a starting point though, I will outline the conflicts inherent in the very notion of legal education.