Abstracts
Keshav K. Acharya (University of New England) Email: kacharya@une.edu.au
Capability Analysis of Community Based Organizations for Community Service Delivery in Rural Nepal
Community Based Organizations are uniquely positioned to conduct and implement the rural development program and activities in Nepal. As key actors of development at the grassroots level, they have sufficient capacity to carry on the development projects in a sustainable way. This study is based on institutional analysis of grassroots level organizations based on primary and secondary information sources. Twenty six different grassroots level organizations and forty four key informants from eight broad local organizations were chosen as respondents from three regional/rural areas of Nepal for this study. Regarding the capability of organizations, this study found that mother group was highly capable to conduct the watershed development and management activities as per stated their objectives. While community forestry user groups, community organization groups, watershed conservation groups, women development groups and drinking water consumer groups were moderately capable, the farmers and livestock groups were less capable. Following the discussion of results, this study has also made some recommendations regarding the operations of the sound watershed management activities through local organizations.
Dr Elaine Barclay (University of New England) Email: ebarclay@une.edu.au
Dr Robyn Bartel (University of New England) Email: rbartel@une.edu.au
Defining environmental crime: the perspective of farmers
Most discussions of environmental crime focus upon environmental degradation at the macro level, such as large scale pollution of rivers, waterways or oceans where there is no clear victim. Rarely is environmental crime considered at a more micro, place-based perspective, namely those incidents that occur on farms where individual farmers are victims. This paper reports on the findings of a study that explored current public attitudes to such incidents. Specifically the attitudes of farmers were examined as this group is primarily the victims of such acts. Data for this research comes from 1926 respondents to a nation-wide survey of Australian farmers. Almost half of the respondents reported experiencing some type of environmental crime over the previous two years, such as the dumping of rubbish on farm land or chemical spray drift. The way farmers defined these events as crimes varied according to offenders, the act, and the social norms surrounding such actions.
Dr Robyn Bartel (University of New England) Email: rbartel@une.edu.au
Rising Tides and Taking Sides: Harmonisation and Localisation in Environmental Law and Policy
How can harmonisation successfully achieve the objective of being a “rising tide that lifts all boats” rather than a race to the bottom of regulatory protection in response to industry pressures to reduce “red tape” and the threat of forum shopping? The paper briefly maps the harmonisation concept, identifying the primary arguments for and against harmonisation in its various forms, before describing several case studies from which recommendations are drawn to enhance the potential for best practice in the area of harmonisation. It appears that harmonisation depends on significant commitment by agencies involved, not only towards harmonisation as an objective, but to best practice harmonisation. Harmonization may achieve appropriate goals if it reduces compliance costs and prioritizes the achievement of environmental objectives, making them easier to attain. There remains the question of how harmonization may be sensitive to a heterogeneous world, varying in both social and environmental phenomena. This is important for there is evidence-based support for moving to more “localized” and participatory governance in order to raise compliance and the success of environmental policies. Harmonization may risk cementing the rural-urban divide and rural land use and water conflicts if it reduces rather than raises the influence of the vernacular in law and policy.
FM Bauman
The Federal Magistrates Court providing access to justice in rural and regional Australia
The Federal Magistrates Court is the only Federal Court that circuits to rural and regional Australia providing access to justice with a unique range of services in 33 locations across Australia.
Keely Boom (THINKK, the think tank for kangaroos, University of Technology, Sydney) Email: keely.boom@uts.edu.au
Kangaroo Court – Enforcement of the law governing kangaroo killing
This paper seeks to provide a fresh and independent analysis of compliance and enforcement in the commercial kangaroo industry. The paper highlights major problems in enforcement of the National Code of Practice for the Humane Shooting of Kangaroos and Wallabies (Code). The key problem is that government agencies do not inspect shooters at the point of kill. The commercial killing of kangaroos occurs in remote locations and is largely hidden from the public. It is recommended that a national feasibility study is undertaken as a matter of priority to determine whether such inspections could be introduced and the costs that would be associated with such a program. In addition, there are no standards for inspections of the industry nor are there standards for reporting by government agencies. As a result there is significant variety amongst the jurisdictions both in terms of practices and reporting. This paper recommends the introduction of national standards for reporting offences. Finally, the welfare standards contained in the Code are problematic (particularly in terms of joeys and injured kangaroos) and the standards themselves need to be better integrated into state regulations. It is recommended that the Code and its integration in state regulations be improved.
Laura Boseley & Melanie Schwartz (Law, UNSW)
Justice Reinvestment in the Australian Context
Justice Reinvestment (JR) is a policy initiative that aims to reduce imprisonment rates by diverting funds from corrections budgets into building community capacity in neighbourhoods that produce large number of offenders. It is argued by proponents of JR that investing in community-specific, place-based programs and services not only makes economic sense (as compared to the cost of imprisoning residents from those places), but has the potential to divert individuals away from the criminal justice system by strengthening the community as a whole. This progressive concept has been implemented in several states across the USA with promising results, and is currently being explored in the UK and elsewhere. This paper will outline the key features of JR and discuss its potential (and potential challenges) in the Australian rural and regional context, particularly in relation to the over-imprisonment of Australian Aboriginal and Torres Strait Islander people. We argue that JR’s focus on community and individual capacity building, community buy-in, and tackling social and economic disadvantage provides an approach particularly suited to Indigenous communities.
Geoff Bowyer & Joy Acquaro (Law Institute of Victoria)
Succession Planning for Legal Practitioners
The Law Institute of Victoria (LIV) is undertaking a number of projects to assist practitioners in regional and rural areas.
In 2009, the LIV completed a survey questioning practitioners on their “succession readiness”. Alarmingly, they found 76% of practitioners indicated intention to leave the practice within 10 years. Of those respondents, 47% suggested they would be retiring. Despite this, 87% indicated they did not have a documented succession plan.
The Report into the Rural, Regional and Remote Areas Lawyers Survey conducted by the LIV on behalf of the Law Council of Australia found 35% of the 1,185 respondents were aged 50+, while 31% were in the 40-49 age bracket. Results also indicated that attracting and retaining employees was of great concern to practitioners.
As a result of identifying these gaps in the profession, the LIV has highlighted the need to assist practitioners to develop succession planning documents. To this end, a suite of resources have been developed to assist practitioners develop an implementation plan. After completing an online diagnostic tool, practitioners are invited to attend a workshop, where they will work through an information book.
Further, the LIV is working closely with Regional Development Victoria to establish a Young Professionals Provincial Cadetship Program for law students in conjunction with county law associations, which will provide an opportunity for law students to undertake regionally-based clerkships.
A third initiative of the LIV is a one-day conference program, “Life After Law”, to provide guidance and assistance to those practitioners seeking to transition away from legal practice and consider other career options with their given skill set.
The presentation, to be made by Geoff Bowyer, will discuss the three projects to date, including some insights from the pilot succession planning workshop.
Michael Cain & Suzie Forell (Law and Justice Foundation of NSW) Email: mcain@lawfoundation.net.au & sforell@lawfoundation.net.au
Workshop – Supporting lawyers and legal services in RRR areas
Drawing on the experiences from its completed research on the availability of lawyers in regional, rural and remote (RRR) areas of NSW and the follow-up study it is currently conducting, the Law and Justice Foundation will conduct a workshop to explore and discuss the issues identified as affecting the availability, recruitment and retention of lawyers in country and remote areas of NSW (and Australia).
This workshop is intended to help service providers, legal practitioners and policy makers understand the place of both ‘umbrella’ responses and more targeted strategies to address problems which, by their very nature, are not restricted to the legal sector but affect the delivery of health services and education as well.
While a focus of the workshop will be on finding ways to better support country lawyers including the need for broader community networking, workshop participants will be encouraged to consider a number of related issues including:
the ‘dying town’ syndrome and how the loss of basic services such as banks, hospitals, doctors teachers and child care (etc) has a flow-on effect leading to the further loss of people and economic resources from these communities
the corresponding loss of ‘social capital’ as sporting clubs and other social networks lose members, diminish in size, become unworkable and may be lost to those communities forever
the effect of ‘residualisation’ - are those who are ‘left behind’ the more disadvantaged and disenfranchised members of our society? If so, what does this mean for the provision of legal services to a changing and perhaps more challenging clientele?
The role of ‘off site’ support and mentoring. Can it work?
Sher Campbell & Katherine Lindsay (University of Newcastle) with consultation from Doug McKay (Lovett & Green, Warren NSW)
Email: sher.campbell@newcastle.edu.au
Lawyers of the future: Creating aspirations, forging connections and facilitating professional links in rural and regional contexts
Newcastle Law School services a huge regional and rural catchment for its students, many of whom are the first in their family to attend law school and consider legal careers. In clear recognition of its distinctive approach to legal education and the backgrounds and aspirations of its students and in response to national political priorities for higher education and legal practice in the next 15 years, the School established in 2009 its Lawyers of the future program. This is a multi-faceted initiative, which promotes professional partnerships with the secondary education sector through the Schools’ Visit program, and partnerships with rural and regional professionals through active connections in those areas.
The third phase of the Lawyers of the future program commencing in 2012, will be the development of rural and regional legal placement sites for Newcastle students enrolled in our Professional program. This is the lynchpin for the development of future professionals committed to serving the legal needs of their home communities, and of rural and regional NSW more generally. This paper explores and evaluates the three phases undertaken since 2009 and offers strategic proposals for future sustainability.
Professor Kerry Carrington (QUT) Email: kerry.carrington@qut.edu.au
The social and criminological impact of mining development on rural communities
Australia is experiencing an unparalleled resource boom due to intense demand from Asian economies thirsty for Australia’s non-renewable fossil fuels. In this global context, and with the backing of state governments eager to generate revenue through royalties, mining companies have launched a $174 billion investment stampede (Cleary, 2011) to extract Australia’s natural resources. The haste of this extraction process has become increasingly reliant on non-resident, fly-in, fly-out or drive-in, drive-out (non-resident) workers who typically work block rosters, and reside in work camps adjacent to existing rural communities. There are estimated to be around 150,000 non-resident workers directly employed by the resources sector anticipated to rise to around 200,000 by 2015. The rapid growth of non-resident workers in the resources sector carries significant impacts for individual workers, their families and host communities, as evidenced by the many submissions to the Australian Parliament House inquiry into FIFO/DIDO work practices. Many of those submissions highlight just how much this issue is fanning widespread rural conflict. Given the collision of self-interest between state governments and mining companies which both profit handsomely from the speedy extraction of resources the attention by state regulators to managing this conflict has often been too little or too late. This paper examines this growing social justice issue concluding there is an urgent need for a national policy and regulatory framework for guiding sustainable mining development and better managing rural conflict generated by the mining boom.
Paul Cleary (ANU & The Australian)
Is the Mining Boom a case of too much luck?
In this keynote Paul Cleary will examine the current mining boom in Australia with particular reference to its implications for rural and regional Australia. He will draw on his books, Too Much Luck, the Mining Boom and Australia's Future (2011) and the forthcoming Mine-Field - the Dark Side of Australia's Resources Frenzy.
Richard Coverdale (Deakin University)
Legal Services Needs of Small Business in Regional Victoria – A Research Report
The provision of effective legal services to rural and regional Australia is of strategic importance to the future of these communities and to state and national economies. The ‘debt crisis’, the spectre of climate change and the growing competitiveness of local and export markets, have impacted significantly on rural and regional Australia.
Additionally, more innovative business structures are now required to respond to changing business needs; increasing regulation of natural resource management and additional layering of planning laws together with increasingly sophisticated contractual arrangements between suppliers and processors, all add further complexity to the flux of change underway. While these activities are creating a dramatic growth in the regulation of business activity nationwide and as a consequence increasing demands on small business and their legal advisors, there is a growing gap in the availability of legal services for regional communities and commerce.
Drawing on interviews and surveys of small business and law firms in regional communities, conducted by the Centre for Rural Regional Law & Justice, this paper assesses the nature and extent of legal service provision to small businesses operating in regional Victoria. The paper highlights emerging needs and potential areas of growth and seeks to identify areas in which regional law firms can improve, expand and refine their services in response to the current and emerging demands on them and the communities they serve.
Catherine Davies (Youth Justice Group Conferencing Convenor, Centacare Ballarat) Email: Catherine.davies@centacareballarat.org.au
‘The Young and the Restless’ Restorative Practices in Rural Communities
The Youth Justice Group Conferencing program is a Victorian Government legislated pre sentence option offered in the Children’s court. It is funded by Department of Human Services and delivered by NGO’s throughout Victoria. Service providers and conveners in rural and regional areas experience issues particular to and distinct from their metropolitan colleagues.
These distinctions have both positive and negative aspects for service delivery and the implementation of restorative justice. The presentation will tease out these particularities and explore the benefits and challenges of implementing restorative practices for young offenders, their families, victims, and the wider community.
Further the presentation will examine rural implications in general and the geographical, socio-economic and indigenous factors specific to the Grampians region and how they affect service delivery.
Working in small communities creates unique opportunities and challenges for convenors in supporting young people. The presentation will look at how restorative justice is able to reintegrate young people back into their communities and help them move on from their offending behaviour.
Professor Kim Economides (University of Otago, New Zealand)
Centre-Periphery Tensions in Legal Theory and Practice: Can Law and Lawyers Resist Urban Imperialism?
This paper questions some basic assumptions of legal theory, education and practice from the perspective of 3 “R” (“rural”, “remote” and “regional”) legal communities beyond the metropolis. Legal ideologies and values fundamental to the legitimacy of the modern state, such as the Rule of Law, are embedded in most law curricula and reinforced at every stage of the educational continuum, and commonly assert that law, legal rights and access to courts of law apply equally regardless of physical location or social status. Despite this, indigenous and other excluded groups living in peripheral communities frequently experience law differently from their urban counterparts, as do legal professionals living and working outside the city. Law, at least in its practical application, is subject to the ‘friction of distance’ and dependent on institutional support, while the impact of legal norms – including those governing professional conduct - may also vary according to ‘local legal cultures’ and the nature of client communities being served. Adversarial ethics, another basic premise of the legal process, may no longer capture accurately how lawyers actually practice in rural and remote settings, but what does?
The key issue I wish to examine concerns how centre-periphery tension should best be managed in the future regulation of law and lawyers. Will centripetal or centrifugal forces prevail and how should these best be balanced, and particularly within a federal constitution? In the past dirigiste policies originating in centralised courts and parliaments, even at state level, were blind to the distinctive and diverse needs of 3 “R” communities, though increasingly policymakers operating at the centre are becoming more aware of, if not flexible and responsive to, the needs of diverse communities that comprise modern Australian society.
Looking to the future, what kind of policies and strategies may genuinely assist social inclusion and to what extent should law and legal practice accommodate diversity? How, and to what extent, should lawyers and para-legals represent the interests of communities, rather than private individuals, in rural, remote and regional areas of Australia? What kind of training and technological support do they require? My paper aims to set out some choices that confront policymakers while drawing upon international experience that may offer some guidance.
Adam Edwards (University of New England) Email: adam.edwards@une.edu.au
Grass v Gas: The Role of Private Nuisance in Agriculture / Mining Land Use Conflict
This research concerns the topical issue of mining expansion and the potential for actual or perceived conflict with existing agricultural land use. The investigation follows from the author’s earlier research into tort law and rural land use conflict (in that case, private nuisance and superfine wool contamination).
At first blush, the law of private nuisance seems an ideal fit for the agriculturalist suffering actual interference from adjacent or concomitant mining operations. For example, the English case of Cambridge Water Co v Eastern Counties Leather [1994] 2 AC 264 (tanning chemicals polluting groundwater) shows clear parallels with the aquifer contamination alleged of coal seam gas extraction. Less clear is whether the case suggests a cause of action for agriculture or a defence for mining.
The author’s earlier work shows the potential for some divergence of Australian jurisprudence on private nuisance as compared with the English case law. In applying this work to the mining industry in Australia, the Canadian position is also examined. The extent of government regulation of such conflict and the interplay of legislation with the common law also inform this inquiry.
The conclusion suggests that private nuisance will provide a remedy for agricultural landholders in some circumstances. At the very least, it is an area of law that the mining industry can ill-afford to ignore.
Suzie Forell (Law and Justice Foundation of NSW) sforell@lawfoundation.net.au
Video technology for rural legal assistance: what the research tells us
In recent years there has been an increasing drive to improve access to legal services through the use of video conferencing and web-based technology. This paper will report on an extensive search for, and systematic review of, existing research into and evaluation of the use of video conferencing (including web-based video technology) to deliver legal assistance particularly to disadvantaged clients, clients in regional, rural and remote (RRR) areas and clients in custody. Due to the limited research and evaluation on this topic, the review also included insights from a selection of service providers who have used video technology for legal assistance, and a small number of methodologically rigorous studies and systematic reviews of use of video conferencing for health services. Drawing upon this available research and previous experience, this paper will: discuss factors which need to be taken into account when considering this (or alternative) modes of communication for the provision of legal assistance in rural locations recommend for a more considered approach to the widespread roll out of video technology for legal assistance.
Catherine Gale (President, Law Council of Australia) Email: vanessa.kleinschmidt@lawcouncil.asn.au
RRR Law - rewarding legal careers in rural, regional and remote Australia
In 2009 the Law Council conducted the nationwide Rural, Regional and Remote Areas Lawyers Survey. The main findings of those surveyed in RRR areas demonstrated that an alarming number of practices did not have enough lawyers to service their client base, and that the problem would deteriorate over the next several years as many experienced practitioners retire. In 2010, in response to Law Council advocacy, the former Commonwealth Attorney-General (Robert McClelland) announced $1.1 million in funding to boost the recruitment and retention of lawyers in RRR areas. This funding included the allocation of $250,000 in one-off funding to the Law Council through the National Association of Community Legal Centres to develop a national campaign. RRR Law was launched by the Attorney-General and former Law Council of Australia President, Mr Alexander Ward during Law Week in May 2011. The campaign included the development of an informational DVD containing interviews with RRR practitioners of their experiences and a national website rrrlaw.com.au which links people interested in practicing law in RRR Australia to available job opportunities. Law Council of Australia President, Ms Catherine Gale will speak about the Law Council's work in relation to recruitment and retention issues in rural, regional and remote (RRR) Australia and will highlight the current work being undertaken to raise awareness of employment opportunities in RRR Australia.
Tahlia Gordon & Steve Mark (Office of the Legal Services Commissioner, NSW)
Hypothetical - Ethics and Moral Philosophy: Challenges from within
This session will explore the questions: What would you do if your professional duties require you to take or condone an action that you would otherwise consider immoral? Would you act? Would you refrain from acting? If so, on what basis? What are the ethical implications of conflicts of interest, duty and loyalty? Explore these and many other confronting questions in a facilitated hypothetical which will examine some of the most common yet complex ethical challenges facing rural lawyers today.
Dr Janet Hammill (University of Queensland) Email: janet.hammill@uq.edu.au
Fetal Alcohol Spectrum Disorders (FASD) in the Criminal Justice System
Exposure to alcohol before birth can cause a sometimes invisible but lifelong, brain-based disability referred to as fetal alcohol spectrum disorder (FASD). Australia has been slow to recognise the possibility that FASD might be influencing the incidence of criminal offending despite common denominators such as illiteracy, early school dropout, lack of empathy and impulse control, inability to learn from experience and committing the same crimes repeatedly. This presentation is based on a Queensland study of FASD in the criminal justice system which surveyed the judiciary, legal fraternity and Indigenous Community Justice Groups. The latter requested a Model of Care that could be used as a reference point for all services involved especially for prison staff and parole officers. The judiciary and legal fraternity asked for qualified experts to assess the ability of offenders in “the exercise of judgement, planning, memory and ability to cope independently with everyday life”. While prevention of FASD is paramount those already affected deserve a human rights approach based on best practice initiatives such as the neurobehavioural accommodation model (NAM).
Caroline Hart (USQ)
Business structures and sustainable regional legal practice: the use of incorporated legal practices and multi-disciplinary partnerships by regional, rural & remote legal practitioners
Since 2007 the Legal Profession Act 2007 (Qld) has offered legal practitioners a wider choice of business structure including sole practitioner, partnership, incorporated legal practice or multidisciplinary partnership. In particular the use of ILPs offers legal practitioners a range of benefits in terms of operating a law firm consistent with business management practices. The status of ILP however comes at a cost of putting in place 'appropriate management systems'. This paper refers to the legislation and the literature on the range of business structures, before giving an insight into the actual choice of business structures used by Queensland RRR legal practitioners. What is the awareness of the new business structures? And are there factors inhibiting RRR legal practitioners from their use? The paper draws upon over 30 interviews with sole practitioners, partners, and directors about their choice of business structure.
Mary Howard (with Hayley Egan) (Director, NSW Women’s Industry Network Seafood Community) Email: maryhoward29@bigpond.com
The Challenges with Wild Harvesting Fish For Food
The Australian Government’s mandate to meet its World commitments is challenging all wild harvest fisher’s historic rights as they lose access to traditional fishing grounds. Individual State governments adopt to regulate and legislate to balance a whole community access right by sharing with recreational fishing and the environment. Socially, communities are demanding sustainable fishing practices. Commercially retailers are endeavouring to capitalise from the sustainability debate by introducing sustainable marketing labels based primarily on the sustainable practices of the wild harvest fishery. Environmental communities are demanding expansion of protected grounds of specific biodiversity and species protection. Politically, recreational fishing communities are demanding exclusive access rights. In NSW this can be demonstrated by looking at the management of NSW Fisheries over the past decade, resource allocation changes, assessing the productivity of the commercial fisheries over time and the changes that had been made during that time. Understanding the impacts of boundary changes, with cross over fishing when grounds are lost and technological changes are introduced and not understood by the media and community. I argue there’s a failure for government to: a) properly and fairly evaluate the whole of community impacts to Aquatic ecosystems; b) determine their rights to access locally harvested sustainably fished product; c) evaluate the impacts to the existing industry from increasing imports; d) identify the bias standards in new legislation.
Dr Lucinda M Jordan (Deakin University) Email: lucinda.jordan@deakin.edu.au
Diversionary schemes and the Children's Court: Issues for rural and regional Victoria
The Victorian Government has committed to reducing crime by young people by creating clearer pathways to prevention and rehabilitation programs. However, unlike many other jurisdictions (in Australia and internationally), Victoria has not adopted a legislative court-based diversion scheme for addressing criminal behaviour by children and young people. Furthermore, despite government interest in early intervention strategies, there has been limited investment in diversionary programs. For young people in rural and regional Victoria, access to these services is especially limited. This paper examines the limited diversionary options available in the current Victorian youth justice system, identifying strengths and opportunities in these programs. It also explores the use of similar schemes in comparable jurisdictions, concluding that court-based diversion schemes for young people are an effective and cost efficient way of addressing criminal behaviour, where supported by community programs that provide appropriate intervention and support to young people at risk of re-offending. Drawing on comparable schemes, it proposes a number of elements for the implementation of a new diversion scheme, including recommendations to ensure young people from regional Victoria are not disadvantaged.
Karen Keegan & Sarah Rodgers (Hume Riverina Community Legal Service)
Practical legal experience for students in rural Australia: how to live, work and play in Albury Wodonga
The Hume Riverina Community Legal Service has a successful partnership with Charles Darwin University in Darwin to deliver a Clinical Legal Education program. The partnership is unique because of the distance between the two services of approximately 3,600 kilometres and the university, CDU, being located in a different jurisdiction to the clinical legal services provider, HRCLS. The aim of the project is to expose undergraduate students to the many benefits of practising law in a rural setting, help raise an awareness of the justice issues unique to RRR areas, and encourage students to consider a legal career in the bush, in particular in a CLC. In addition, HRCLS also takes PLT students from any Australian University. This paper will give an overview of the program developed by the HRCLS and discuss the current funding model and suggestions for the future.
Amanda Kennedy, Richard Coverdale, Caroline Hart, Claire Macken, Reid Mortensen, Trish Mundy, Jennifer Nielsen, Theresa Smith-Ruig
Curriculum in context: Reconceptualising undergraduate law teaching to prepare graduates for legal practice in rural and regional areas
Universities are increasingly recognising their role in the preparation of graduates for employment, and there has been a growing acknowledgment in some disciplines that this includes preparation for employment in certain contexts, such as rural and regional communities. The typical law school curriculum does not however take account of a student’s eventual employment context, and where it does, it usually presupposes career placement in an urban environment. Overall, this results in a failure to adequately prepare graduates for work in rural and regional areas, contributing to the reported recruitment and retention issues within the rural and regional legal profession.
This paper will explore strategies which may be implemented within the law school curriculum to better prepare, attract and retain legal professionals for careers in rural and regional areas. Specifically, it will focus upon ways in which theoretical components of the legal education curriculum may be redeveloped to ‘sensitise’ law students to the contextual realities of rural and regional legal practice. Rural and regional legal practice is characterised by unique professional and personal challenges, yet it also presents a broad range of opportunities rarely experienced in an urban context. Through exposure to learning modules such as: the rural context and the concept of the rural and regional lawyer; ethical dimensions of rural and regional legal practice; personal, interpersonal and professional skill requirements; career development and methods of innovation adoption, students will be better placed to deal with the challenges of rural and regional practice, as well as to take advantage of opportunities and innovation.
Judith Levitan (Law Foundation NSW) jlevitan@lawfoundation.net.au,
Jenny Lovric (Legal Aid NSW) Jenny.lovric@legalaid.nsw.gov.au
Helen McGowan (ANU College of Law) rrraustralia@gmail.com
Collaboration and innovation in NSW RRR legal services
This paper will showcase current research, practical strategies and initiatives underway in RRR NSW to address:
- recruitment and retention of lawyers;
- professional development and support for lawyers; and
- increased access to legal services for disadvantaged communities.
The paper will demonstrate that common elements of these initiatives include:
- cooperative arrangements and collaboration between different legal service providers within the justice sector; and
- arrangements informed by evidence-based research and identified gaps in existing legal services.
The paper will outline features of innovative projects such as:
- use of video conferencing technology across justice sector agencies to provide increased access to legal services and professional development opportunities for lawyers;
- local regional networks of legal and non-legal services that facilitate opportunities to collaborate on projects aimed at increasing access to legal services for disadvantaged communities (Cooperative Legal Service Delivery Networks);
- regular legal outreach services (through the Regional Outreach Clinic Program) to communities identified as at risk of social exclusion; and
- ad-hoc, responsive legal outreach that responds to environmental or social events (e.g. floods, factory closures).
The authors will highlight the significance of interagency forums (e.g. NSW Legal Assistance Forum and CLSD Networks) in facilitating the development and implementation of these initiatives.
Kylie Lingard (University of New England) Email: klingard@une.edu.au
The impact of the law on consultation practices and purposes: a case study of Aboriginal cultural heritage consultation in NSW
Consultation often precedes rural and regional decision-making. This paper considers the duty to consult that arises when a law requires consultation before the making of a government decision. Academic case studies on consultation identify problems with the implementation of consultation practices, and with the ability of consultation to fulfil any real purpose. Academics have identified these problems by studying the relationship between institutions and consultation. There is little academic research on the impact of the law on consultation practices and purposes. This paper aims to direct discussion back to law by evaluating the NSW duty to consult Aboriginal people before permitting harm to Aboriginal cultural heritage. The case study evaluation suggests that statutory consultation requirements enable the implementation of ineffective practices, and that the duty to consult is ill-designed to fulfil the purpose of the consultation. This paper concludes that law reform may improve the problems facing consultation, the representation of Aboriginal people in government decision-making, and the livelihood of Aboriginal people in rural and regional NSW.
Peter Long and Andy Munro (Slater & Gordon, Gunnedah and Coffs Harbour)
Practicing Law In, and Providing Legal Services To, Rural and Regional Communities
The paper will explain the looming dearth of rural practitioners and the philosophy behind Slater & Gordon setting up offices in rural and regional Australia so as to allow communities ready access to legal services in their region without the need of having to travel to the city for the same. It will also consider the pleasures and problems of practicing law in the bush and of ensuring the delivery of prompt, efficient and competent legal services.
Dr Xanth Mallett (University of New England) Email: xmallett@une.edu.au
Forensic Identification of Perpetrators of Child Abuse
The societal impact of cases of child sexual exploitation is becoming ever more serious, with the number of perpetrators increasing significantly as new methods of dissemination become accessible with advances in technology. This has meant that indecent or abusive images of children taken, for example, in Australia, may be retrieved from hardware in the UK, or Far East - making this a truly world-wide crime and one therefore that does not observe the conventional boundaries geographical, social and cultural boundaries between urban and rural. The Internet is a major source of traffic in terms of image dissemination, and identifying the perpetrators has become more difficult as data is distributed across international networks. This has led to considerable problems for investigative agencies, as pedophile networks are not restricted by inter-organizational or territorial boundaries. New avenues have been sought to identify these predators, including one focusing on analysis of features of the hand (including scars, moles, freckles, knuckle patterns) which strives to offer reliable and repeatable evidence; available through evidential recovery - including computer hard-drives and mobile telephones. Case requirements relating to offender/suspect comparison have exploded in the UK, with numbers set to continue to rise. The results of the cases which have already been through the judicial process demonstrate the significant impact that the evidence produced has had on the prosecution of these types of crimes: Seven offenders subsequently changed their plea from innocent to guilty when presented with the hand comparison evidence, and a further four offenders have been found guilty by Jury; partially as a result of the evidence provided by the identification team at the University of Dundee. To date, this is a potential untapped mechanism in Australia.
Helen McGowan (ANU) Email: helen.mcgowan@anu.edu.au
Recognising and resolving conflicting interests in small scale regional legal practice
This paper examines how regional lawyers endeavour to act ethically, whilst managing their various professional and personal roles, duties and interests. A principle of ethical legal practice is that lawyers must avoid ‘conflicts of interests’ although some suggest that conflicts can be ‘managed’ (Griffiths-Baker 2002). The literature reveals that conflicts of interests and duties are difficult to avoid within regional legal practice due to the limited ability to refer clients elsewhere combined with a higher likelihood that the lawyer will have a pre-existing relationship with their clients or their clients’ opponents. (Tomasic 1978, Coverdale 2011) The paper explores proposed empirical research into the ethical world of lawyers in small scale regional legal practice. The hypothesis is that regional lawyers have developed a unique ethical approach to managing ‘conflicts’ which reconciles their specialist advocacy role with their contextualised practice within the regional communities in which they live. The research occurs alongside the proposed national alignment of regulatory functions, which aims (inter alia) to relieve practitioners’ regulatory burden whilst maintaining a focus on professional excellence. It has been suggested that the adoption of ‘principles based regulation’ will reduce the plethora of rules, whilst encouraging ethical practice wisdom. The paper combines the two elements by arguing that a nuanced understanding of what actually happens when regional lawyers exercise their ‘ethical instinct’ may assist in two ways; firstly the encouragement of a discourse approach to continuing professional development informed by an appreciation of applied ethics, and secondly the promotion of ethical legal practice in the acculturation of new lawyers to regional practice.
Helen McGowan (ANU College of Law. Email: rrraustralia@gmail.com)
Andrew Boog (Orana Law Society/Austen Brown Boog) Email: agb@austenbrown.com.au
Sharon Tomas (National Association of Community Legal Centres) Email: Sharon_tomas@clc.net.au
‘We’re not dead yet’: Strengthening the regional legal profession
The perception that there are insufficient lawyers to service the legal needs of regional, rural and remote Australian communities was validated by research conducted by the Law Council of Australia (2009) and the NSW Law and Justice Foundation (2010). In response, the Australian Attorney General funded a range of projects seeking to create solutions to the issue of recruitment and retention of regional lawyers. This paper tells the story of the western NSW legal community which has hosted a Regional Recruitment and Retention Coordinator employed by the National Association of Community Legal Centres and who has been working closely with the Dubbo based Orana Law Society. Although the focus of the role was initially on the public / community legal profession, the experience is that an holistic integrated approach is needed to redress the issues which are shared across the legal profession. Through the use of established networks and infrastructure, including the Orana Law Society, the profession has collaborated on recruitment and retention initiatives, continuing professional development, mentoring and social events. The paper suggests that this model resources both the demand and supply side, by providing a consistent and committed point of contact responsible for the sustained health of the local legal profession and through that commitment to the legal health of regional communities.
Michael McShane (Deakin University)
The role of state sanctioned mediation in promoting a neo liberal agenda beyond Metropolitan Australia
The paper explores the role of state sanctioned mediation in furthering a metropolitan and Neo liberal agenda in rural and regional Australia. In a recent paper, Iain Ross, [President, Victorian Civil and Administrative Tribunal] discusses the strategic mission of VCAT in terms of excellence; this language and related terms such as excellence, innovation, flexibility and the like is the reigning language of the public sector. It is apparent not only from VCATs web site, but from the language shaping the way in which judicial actors construct their understandings of their roles at both the State and Commonwealth level. For example, the Victorian Magistrates’ Courts’ web site discusses the importance of being the best provider of justice in the world; no doubt intent upon establishing itself as the benchmark against which all providers of justice in the world can be assessed as performing (in) competently. Competency too, is another key term in the Neo Liberal lexicon, as are standards and measurements. Indeed, performance and performers must always be framed in measurable and auditable qualities; after all, absent such terms of reference, it is not possible to demonstrate the effective and efficient delivery of justice. I will defend the claim that the approach to mediation adopted by the various instrumentalities of the state, i.e., interest-based negotiation and facilitative forms of mediation, (i) embodies features that are compatible with the discourse of the market; (ii) is articulated within an institutional context that reinforces those tendencies and (ii) that in expanding their influence beyond the borders of Metropolitan Australia is effectively colonizing modes of disputing in terms that further the needs of global capital. I think it is important to consider the enthusiastic embrace of mediation by administrative tribunals and courts over the past 20 years or so as paralleling the ascendancy of market discourses. It is true that mediation is seen as a response to a failure of traditional conflict resolution institutions to cope with demands to which they are subject. But those demands could be met by a different response and reflect the commitments and values on which the Welfare, rather than the marketized state, was constructed.
Tony Meacham (PhD Candidate, University of Southern Queensland) Email: anthony.meacham@usq.edu.au
20 years after Mabo – Is there any more certainty for pastoralists, miners, and Indigenous people?
In June 1992 the Australian High Court brought down a decision in Mabo and Others v Queensland (No. 2) 175 CLR 1 that had a wide ranging impact upon those who lived and worked in rural and regional Australia, and has continued to do so. The decision upheld the claims of five plaintiffs from Murray Island that Australia was occupied by Aboriginal and Torres Strait Islander peoples who had their own laws and customs, and whose 'native title' to land survived the Crown's annexation. Thus the Court recognised the existence of native title as part of Australian common law.
The Mabo decision presented many legal and political questions, including the validity of titles issued after the commencement of the Racial Discrimination Act 1975 (Cth), and the permissibility of future development of land affected by native title.
Despite the progress in cases of the last 20 years, Justice French (when in the Federal Court) said it is “the nature of native title litigation under the substantive law that it imposes heavy burdens on the human and financial resources of the principal parties involved.” It took the Mabo plaintiffs ten years for resolution. The Native Title Act 1993 (Cth) will itself be 20 next year. Has there really been any substantive progress for affected parties?
Trish Mundy (University of Wollongong) Email: tmundy@uow.edu.au
Legal practice in RRR communities: the ‘imagined’ experience of final year law students
This paper documents a ‘work-in-progress’ research study involving a narrative analysis of in-depth interviews with twelve final year law students from both regional and city-based Universities across Queensland. The research explores student attitudes to, and perceptions of, legal practice in rural, regional and remote (RRR) communities. Students were asked about their career goals and preferences as well as exploring the ideas, experiences, values and beliefs underpinning these. This paper will explore some of the main themes and messages arising from the student interviews and consider possible implications for law school curricula. To date the research suggests the need to embrace a more inclusive curriculum, affirm and support student diversity in terms of career goals and trajectories as well as the need to respond to both the ‘real’ and ‘imagined’ student experience of rural social space, particularly in its gendered context.
John Scott (University of New England) & Elaine Barclay (University of New England)
Community Policing in Australia's Aboriginal Communities
The policing of Australia's Indigenous people has a long and troubled history, reflected in the perpetual over-representation of Aboriginal people within the criminal justice system. However, over the past two decades, community policing initiatives have been developed by Aboriginal people to enable their communities to be more effective in preventing crime and provide effective models of sanctioning and rehabilitating offenders. These initiatives are often grounded in models of restorative justice. This paper discusses three of these initiatives, namely: circle sentencing, Aboriginal Community Liaison Officers and community night patrols. In particular, we critically examine community night patrols, drawing on data from an evaluation of night patrols in the state of New South Wales. We argue community policing can be successful in reducing crime because it draws on one of the most important (and overlooked) forms of social capital among rural Aboriginal people - strong social and kinship networks. However, we also highlight the different capacity of communities to regulate conflicts, support victims and offenders and resource reintegration, noting that communities are not a natural set of relations, but constructed on broad terrain of history and politics.
Associate Professor Brian Simpson (University of New England) Email: brian.simpson@une.edu.au
Breaking the Boundaries: The right of children and young people to be active participants in constructing rural and regional communities
A child friendly city is a city that includes children in all aspects of the planning and governance of a city. But if the global child friendly city movement has gained little traction in urban areas of Australia, then there seems little hope for children and young people in non-urban Australia. Yet, perhaps ironically, the only UNESCO accredited child friendly city in Australia is the regional Victorian city of Bendigo. This might suggest that regional communities that are built upon local networks might actually embrace the notion of inclusion of children in all aspects of the planning of their communities. Yet how then do we explain that other regional and rural centres in Australia have not pursued becoming child friendly cities? In part this can be explained by Australian perceptions of rural and regional youth as ‘disadvantaged’ or eager to leave such communities. Such labels suggest that children and young people have little ability or stake in such communities and so little to contribute. It is also possible that those with power in rural and regional communities tend to impose their own boundaries on who are worthy of being contributors to the planning and governance of those communities. In their paradigm children and young people may be the subjects of schooling, skilling and employment debates but they do not possess a right to a share of the power in such communities. This paper explores the boundaries of children’s rights to actively participate in the construction of rural and regional life and how official discourses have inhibited such rights in regional and rural Australia.
Professor Daniela Stehlik (Charles Darwin University)
Professor Lesley Chenoweth (Griffith University)
Professor Clare Tilbury (Griffith University)
Associate Professor Donna McAuliffe (Griffith University)
Ms Maree Collins (ANU)
Ms Ros Aitchison (Griffith University)
Email: daniela.stehlik@cdu.edu.au
‘Service’ networks: the current and future of interagency committees
For many practitioners in rural and remote Australia, one important connection to their discipline and to their communities-of-interest, remains the inter-agency framework. Membership of these networks can be eclectic, ranging from health, human services, justice and government. For practitioners working alone, or in small communities, access to such inter-agency networks becomes a crucial professional ‘life-line’. Designed to enable ‘a whole of community’ approach to issues, such inter-agencies are coming under increasing pressure as the skills shortage and inter-generational changes, among other issues, take hold. In addition, resourcing such opportunities is often the first casualty when budgets are being developed, as they can be viewed as ‘non-core business’. Drawing on research, now over more than two decades, conducted by the key investigators, as well as on more recent research being undertaken as a component of an ARC Linkage collaboration, this paper presents the current inter-agency landscape and argues for its future sustainability as a critical aspect of the need to ensure justice and equity in rural and remote Australia.
Nathanial Taylor & Deborah Noll (Central Australian Aboriginal Legal Service)
Nganampa Mara Yaltji
Indigenous Australians living in remote regions of the Northern Territory have a tumultuous history with the Child Welfare System. It is a history that has fostered a state of disempowerment for indigenous families involved with “welfare”. This, in turn, has contributed to the over representation of indigenous children and adolescences subject to Child Protection Orders in the Northern Territory. The Northern Territory Care and Protection of Children Act (2007) enshrines the common law principles of natural justice and procedural fairness allowing parents and family members the right to be heard whenever an Application is made to declare a child in need of protection. In reality, is this the case? Vast distances, poor education, low socio economic living standards, in addition to cultural and language divides present unique challenges for Central Australian indigenous parents and families which has resulted in an all too often exclusion from effective participation in the judicial processes surrounding the making of Child Protection Orders. In the technological age of the 21st Century what is the best way forward that will guarantee those Indigenous Australians living in remote regions of the Northern Territory will have equal access to judicial system as their city cousins.
Karen Wilcox (UNSW) Email: k.wilcox@unsw.edu.au
Collaborative Practice in Family Violence and Family Law work: The AVERT experience
The intersection of families living with family violence and the family law system practice has been the subject of several reviews and reports over recent years. Numerous recommendations have emerged from these reports, and the Family Law Act has recently been amended, partly on the basis of some of these recommendations. This practice-focussed paper examines the outcomes various studies which relate to the need for the development of collaborative practice within the family law system, in order to respond more effectively to family violence. It outlines some of the possibilities for establishing collaborative practice and discusses the introduction of the Attorney General’s AVERT multi-disciplinary family violence training package in 2011. The value of this package for rural and remote communities is considered, based on case studies from training which has been undertaken to date. Future directions which need to be taken to achieve effective and holistic responses to family violence and parenting arrangements will also be canvassed.
Dr Jacqueline Williams (University of New England) Email: Jacqueline.Williams@une.edu.au
Sue Higginson (Environmental Defenders Office) Email: Sue.higginson@edo.org.au
Mining: coming to a farm near you
Our paper explores the justice and equity issues of mining developments in NSW and the perversity of the law. The current legal instruments including mining, planning and environmental laws perpetuate an inequitable and unjust competition between mining companies and rural communities over use of natural resources and enjoyment of rural lifestyles. These issues will be exemplified through two case study regions of NSW in Dorrigo and Boggabri. The social licence of rural communities is threatened by the expansion of mining across regional and rural Australia. In particular it is questioned whether the mining industry hold the claimed trust of the community that has enabled their ease of access to natural resources gifted by government for many years and compare other industries such as timber, seafood and farming (irrigation and native vegetation) and the government policy and legal reforms undertaken since the 1990s to ensure sustainable natural resource management. Why has mining escaped the types of reform other sectors have faced where ‘no go zones’ are accepted by other industries as part of sustainable practice? This predicament indicates the current protectionist relationship between government and the mining sector needs revisiting and reform. Our paper proposes reforms to policies and laws to create a more just and equitable approach to sustaining communities and natural resources in rural regions.