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?

A sense of entitlement? The (gender) subtext of 'lifters not leaners'

The Coalition’s pledge to revive work for the dole and income management has reignited the inevitable claim that those receiving welfare have a ‘sense of entitlement’. The Prime Minister-elect’s own pledge to build an Australia of ‘lifters not leaners’ is indicative of this. The gist of this claim rests in an assumption of the moral or psychological deviance of welfare-recipients that itself is an unacknowledged and uninterrogated ideological stance.

The pejorative ‘leaners’ demonises those on welfare while framing the struggle over needs in a way that avoids engagement with the structural change that is required genuinely to bring along all in society in a common endeavour. 

Sex appeal and the 'disorder of women'

Did we get the vote so our sex appeal could be rated?*

The Leader of the Opposition, Tony Abbott, described Fiona Scott, one of his party's candidates for the forthcoming federal election as 'young and feisty' and that she has 'a bit of sex appeal'. The comments have gone viral, and have been widely reported in the mainstream media in Australia and overseas. Naturally, they have attracted comment - both from those who criticise his statements as sexist, and also from those who believe that the comments are at worst harmless, and at best, complimentary.


Behind the discussion about the offensiveness or otherwise of the comments is what they reveal about the place of women in public life in general, and political life in particular. It is interesting therefore to view the comments according to how we conceive of and justify civic participation.

'Family' values and the privatisation of welfare

If women have a baby outside a stable relationship, they may break the social security system.

A couple of news items in the weekend papers have piqued my interest in the ongoing conservative putsch to retain the centrality of the family in society. The first of these was a story about the Federal Opposition MP, Kevin Andrews, who has signalled a 'socially conservative change' to welfare policy under a coalition government. (Andrews' views on family are well known.)

The second is a piece in the Weekend Australian by Catholic pro-family conservative writer, Angela Shanahan opining about the importance for women of marrying a stable man. For the children.

These uncritical views rely on a combination of sentimentality and ‘facts’ about how society benefits from this institution. What they fail to reveal is the history of paternal control over women and children central to the effective operation of the family in a patriarchal society. And by family, what they mean is a married heterosexual procreative union.

These views of family implicitly blame single mothers and their children for the breakdown of society. I maintain that it is instead the narrow construction of the institution of ‘family’ that feeds into the moral (conservative) panic of social collapse. What we need instead is a re-imagining of society.

'Invisible substances': Can we trade them? Of course we can...

Today I heard the leader of the federal opposition, Tony Abbott, describe the government's proposed change to an emissions trading scheme, as:

A market in the non-delivery of an invisible substance to no-one.

This position is not new, and Mr Abbott has for some years described carbon in terms such as an 'invisible, odourless, weightless, tasteless substance'. Regardless of the science or the economics involved in characterising carbon and the effectiveness of a carbon market per se, what interests me is the problematising of a market in an 'invisible substance'. It also surprises me in light of the law's unambiguous acceptance of intangibles as property, which supports the commodification and therefore marketisation of a host of 'invisible, odourless, weightless, tasteless'...non-substances.

The Ecology of Land Regulation in Queensland

In the last couple of weeks, the Queensland government has passed changes to tree clearing legislation and introduced provisions allowing cattle to graze in certain national parks and reserves. Both changes represent a regulatory shift in land use priorities relating to biodiversity and conservation and the ecological sustainability of industrial farming that threaten legislative and policy progress on ecological sustainability.

Human Embryo Research: Who Donates the Eggs?

Who donates the eggs?*

In headline news today, scientists have announced a breakthrough in human cloning. Human skin cells and a woman's egg were used to create an early stage embryo that is a copy of the original skin cell. The news is being celebrated largely because of the possibility for this process to develop therapy or cures for many afflictions.

There is also concern however over other implications of the process - principally the spectre of cloning humans themselves. Most responses I've heard on this point so far, have focused on the strict regulation of human cloning for reproduction, and the severe legal penalties for breach.

This is a complex enough issue - weighing the obvious therapeutic benefits for those suffering debilitating diseases and the concerns attendant on the technology taking us down the path of human cloning. However there is another aspect that I've not seen mentioned in the media so far: namely the origin of the 'donated' eggs.