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ALPSA National Essay Competition Details of the 2006 Competition will be available soon. 2005 ALPSA National Essay Competition ANNOUNCEMENT OF WINNERS 1st ($1,500) Frances Simmons (University of Technology, Sydney) Protecting Women’s Agency: Trafficking in Women for Sexual Exploitation and the Challenges for Feminist Jurisprudence Short Biography: In 2005 Frances completed a Bachelor of Laws (Hons)/ Bachelor of Arts in Communication at the University of Technology Sydney. During her final years at university she been employed as a research assistant to Jennifer Burn, a senior law lecturer at UTS and worked asa summer clerk and paralegal at Blake Dawson Waldron Lawyers.Frances is currently working as a Legal Research Officer at the Human Rights and Equal Opportunity Commission. Abstract: This paper explores the tension between acknowledging women's agency and recognising their victimisation by examining the role of consent in recent discourses about the trafficking of women into sexual servitudeand prostitution. This paper argues debates about the role of consent in trafficking and prostitution reveal two conflicting prescriptions of the legal subject: the liberal story of the autonomous legal subject who, unfettered by his surroundings, has an inherent capacity for self-determination; and the radical feminists' vision of the objectified (female) victim of the oppressive effects of patriarchy. The central thesis of this paper is that both liberal and radical feminist discourses on trafficking and prostitution are unable to protect women's agency. This paper draws on the insights of poststructural theory to argue that agency is neither absolute nor impossible but a quality which should be protected and promoted whenever possible. It concludes the concept of consent must be reconstructed to draw attention to the context in which consent occurs. This, in turn, illuminates the crucial task of protecting, and promoting, women's agency both within and outside the sex industry. 2nd ($750) Luke Heilbuth (University of Sydney) Ought the Law to Ban Pornography? Short Biography: Luke has just completed his law degree at the University of North Carolina, on exchange from the University of Sydney. He previously undertook an arts degree, majoring in English literature, political philosophy and government at the University of Sydney and Leiden University in the Netherlands. Luke plans to travel throughout Southern Europe and Africa in the foreseeable future, before pursuing a career in international affairs. Abstract: “The sage” warns Isaiah Berlin, “knows you better than you know yourself, for you are the victim of your passions”. So speaks the Marxian language of false consciousness, where one is destined to be free only to the extent that another deems appropriate. The “sage” is Catharine MacKinnon, the avenue is censorship through the law and the target is pornography which, MacKinnon contends, conditions men to view women as their subordinates. Accordingly, the law is justified in seeking and enforcing its prohibition. The sage, however, offers no explanation why the “patriarchal” institutions of the state should be granted more power to censor women and make Woman less free. MacKinnon’s vision is grand – a world predicated on equality without oppression or degradation. All you have to do is exchange your rights for her virtues. This conclusion is remarkable not for its radicalism but for its conservatism: a vision of woman incapable of knowing what is in her own best interests. Surely the sage realises the bitter irony? It was not pornography but the laws of the patriarchal state, prompted through the actions of her conservative brother sages, that once defined her as chattel. Now MacKinnon has become the oppressor, defining what choices her sisters might make. This paper argues that no one has the right to arbitrate on the limits of individual liberty. To be free to choose, and not to be chosen for, is a virtue so fundamental to justice that it must be rendered inalienable. 3rd ($250) Gabrielle Appleby (University of Queensland) A Postcard from Papua: a 30 Year Check Up on PNG Democracy Short Biography: I am a 23 year old student currently finishing my arts degree (journalism major) at the University of Queensland. In July 2005 I graduated from my LLB with first class honours. This year, I have been employed as associate to the Honourable Justice PD McMurdo of the Supreme Court of Queensland. Prior to this appointment, I was employed as an article clerk to the Crown Solicitor (Queensland) and as a general clerk at Crown Law. I am commencing in a junior lawyer position in the competition and intellectual property team at Minter Ellison, Brisbane, in 2006. Abstract: In the mid 1970s, two legal philosophers articulated contrasting opinions on the success of transfers of legal norms and systems. Alan Watson advocated the social ease of such transfers; Otto Kahn-Freund warned of their failure absent a requisite degree of similarity between the State from which the norms were taken, and that which would be in receipt. This paper explores one of the many explosions of democracy in the South Pacific region in the last half of the twentieth century: Papua New Guinea, through the analytical eyes of these philosophers. When PNG gained independence 30 years ago, it adopted a system of government through its detailed Constitution that was a reflection of the English and Australian Westminster democracy. This paper juxtaposes the two philosophical schools of thought, allowing a comparison and synthesis of aspects of the theories through a discussion of their predictions, in the absence of historical facts, of the potential ‘success’ of the PNG Constitution. This is contrasted with an examination of how PNG democracy has, in fact, unfolded, and what lessons in the art of transplanting legal norms can be extracted from it. Highly Commended: Katie Eagles (University of Melbourne) The Reason Australian Law Will Never Allow a Heterosexual Advance Defence Short Biography: After leaving high school year 11 to pursue nearly a decade of artistic and equestrian endeavours, Katie completed her first year of an arts degree at Monash University in 2002 before transferring to arts/law at the University of Melbourne. She is beginning her fourth year of law in 2006, specialising in criminal and family law, and law reform; she is also completing her arts degree, majoring in cultural studies with a focus on feminist understandings of cultural issues. Upon graduation Katie intends to work in criminal law, and pursue her other interests of furniture design and construction, animal husbandry and outback travelling with her partner Lou. Abstract: Why do courts accept the ‘homosexual advance defence’ as an excuse or justification for homicide? Why will a ‘heterosexual advance defence’ never be accepted? To answer these questions, this essay first introduces the theoretical and psychiatric origins of the ‘homosexual advance defence’, or HAD, in the United States, and its gendered application in Australia. Then, with a feminist philosophy, the relationships between the hegemonic masculinity of those relying on the defence, and patriarchy, homosociality and homosexuality are analysed. Next, the dominant hypermasculinity of the countries in which the HAD is employed is examined. The essay focuses specifically on Australia’s hypermasculine traditions; and, through analyses of the provocation doctrine, and legal responses to ‘domestic’ violence in addition to the HAD, reveals that Australian law protects and perpetuates this masculinity, allowing it to remain dominant. The essay demonstrates that the Australian legal system and the HAD are both symptom and symbol of a larger patriarchal system which exalts hegemonic masculinity over other forms of gendered and sexual identity. For this reason, it is unlikely that a ‘heterosexual advance defence’, or any other defence which threatens hegemonic masculinity, will succeed in Australia. ALPSA would like to thank the following law schools for their generous support in 2005: Julius Stone Institute of Jurisprudence, University of Sydney University of Melbourne Law School TC Beirne School of Law, University of Queensland Division of Law, Macquarie University Faculty of Law, University of New South Wales 2004 ALPSA National Essay Competition ANNOUNCEMENT OF WINNERS 1st ($1,500) Kathleen Brand (University of Melbourne) 'Authorship and Dreaming': Indigenous Cultural and Intellectual Property Law Short Biography: I am 26 years of age, and have completed all my studies at The University of Melbourne during the past eight years. I have completed (or am near completion of) the following: BA(Hons) with Majors in Anthropology, Psychology and English Literature; completed honours thesis in English Literature, entitled Earth is Spirit: Reading the Aboriginal Sacred in Post-War Australian Writing which addresses representations of indigenous Australian sacredness in Australian literature; Grad Dip in Arts (English Literature); LLB – to be completed in 2004. I am presently employed part time as a paralegal; and have been a member of the editorial board of the Melbourne University Law Review for the past two years. I am commencing Articles of Clerkship in 2005, at Blake Dawson Waldron, Melbourne. Abstract: This paper addresses claims by indigenous Australians to intellectual property rights, specifically in relation to copyright in artworks, and the fundamental difficulties of this enterprise. Whereas conventional legal principle identifies copyright in accordance with a Romantic schema, being an exclusive right to authorship as a solo enterprise, traditional indigenous understanding of authorship is defined by notions of complementarity and custodianship, whereby indigenous art is derived not from a single author but from several generations of interpretative rendering. As such, while Australian copyright legislation turns upon the right to protection of individual creation and original invention, indigenous authorship is understood to be collective. Moreover, indigenous artistic creation is considered a form of custodianship, expressed via a process of repetition or re-enactment of the Dreaming through art, literature, song, dance or story. Presently, the law of copyright does not recognise such custodianship and communal authorship as it is understood within Aboriginal law and custom. Rather, artistic expression is protected as a right to exclude and control access to information, as a commodified object rather than a form of cultural expression. Such constraints on the right of Aboriginal artists to protection under the current regime highlight a continuing struggle against an arguably assimilationist approach within the law, which threatens to subsume indigenous cultural integrity within a patently different system of protection. Although there may be some scope for extension of protection in the insertion of moral rights protection in the recently amended legislation, this remains limited. Rather, the dominant legislative framework frequently fails to accommodate interests extrinsic to a Eurocentric paradigm. There has been some parliamentary suggestion that these provisions would be improved by some explicit reference to moral rights in indigenous cultural works. This paper suggests, however, that in order to effect tangible protection, a more lateral approach to reform is necessary, by embracing cultural difference as an aid to the development of a more integrated approach which incorporates indigenous understandings of cultural and intellectual property. Such an approach would enable indigenous groups to claim control over protection of their own cultural heritage, and facilitate the development of a more fully expressive law. NB. Kathleen was unable to attend the Australian Society of Legal Philosophy (ASLP) Conference in Melbourne (Dec 13-15th 2004). The remaining winners all attended the ASLP Conference, with Ben Bertoldi and Simon Quinn presenting their papers at a special ALPSA Session. 2nd ($750 + $250 for ASLP Conference) Ben Bertoldi (University of Queensland) Artefacts of Motion: A Hayekian Analysis of Law, Co-Operative Behaviour and the Marriage Amendment Legislation Bill 2004 Short Biography: I am a 20 year old third year arts (political science; art history)/law student at UQ. I work as a part-time law clerk in a boutique Brisbane law firm. I wanted to do law to make a change and, remarkably, my first year idealism has not yet worn off. My interests include: law, philosophy, gender studies and Baroque art. I'm also about to go backpacking through parts of Asia for 6 weeks. Abstract: The issue of legally recognised same-sex marriages has, as of late, been a topic of heated debate within the Australian political, legal and cultural landscape. Rather than focusing on the specific merits of same-sex marriage per se, this paper seeks to consider the validity of legislative restrictions that function to prohibit these services via the Marriage Legislation Amendment Bill 2004. Employing the logic of Hayekian reasoning, the Bill is addressed by way of reference to an evolutionary interpretation of law. It is argued that legislation is appropriate only in so far as it encourages cooperative behaviour and, therefore, a definition of marriage confined to an out-dated code of ‘appropriate moral conduct’ should not be supported. Alternatively, this paper encourages the reader to contemplate the evolution of marriage’s function, that being to cultivate the end condition of love that is more conducive to cooperation amongst the species. As such, it is contended that the said Bill can only serve to hinder the realisation of these ends given the evolutionary benefits of same-sex relationships. 3rd ($500 + $250 for ASLP Conference) Simon Quinn (University of Queensland) Rethinking Rules: Structure and Change in Systems of Incompleteness Short Biography: Simon is finishing a law degree at the University of Queensland's T.C. Beirne School of Law.Last year, he completed an Honours degree in Economics.His thesis studied an evolutionary multi-agent simulation of cooperation and altruistic punishment.Simon is particularly interested in applying new insights from evolutionary economics, network theory and complexity theory to understand better the relationship between institutions and economic development. Abstract: Rules are indispensable to the structure, behaviour and evolution of our society.This paper seeks to understand better the nature of rules themselves. The concept of a ‘rule’ is defined in terms of computation, and a ‘rule system’ is defined as any set of rules that is understood as having mutual relevance. Such definition permits analysis of a wide variety of systems.The set of conceivable rules bifurcates: every rule is either completely specified, or it is not.The set of conceivable rule systems bifurcates along the same lines.Rules of law are explained as being inherently incomplete, so that a system of law is a system of incomplete rules. Systems of incomplete rules exhibit important characteristics not shared by systems of complete rules. Only systems of incomplete rules are susceptible to evolution.In systems of incomplete rules, every rule will typically relate to some of the other rules - but not all.The structure of incomplete rules is therefore an important emergent characteristic - relevant both for a general understanding of evolutionary processes and for analysis of specific rule systems. By way of illustration, the paper presents a new empirical network analysis of the jurisprudence of the High Court of Australia.Tentative insights transpire, particularly regarding self-similarity and hierarchical branching. The author argues that this represents a novel approach to studying rules and rule systems generally.The approach suggests new insights into the nature of legal regimes and new dimensions for comparative analysis. Highly Commended ($250 for ASLP conference) Vanessa Grunstein (University of Technology, Sydney) The Departure of Legal Reasoning from Formal Logic and Subsequent Limitations on Computerising Legal Method Short Biography: Vanessa is 23 years old from Sydney, Australia. She has just completed a combined degree of Computing Science/Law at the University of Technology Sydney. Her interests include music, Artificial Intelligence, dancing and travelling. She hopes to pursue a fruitful career in law that will enable her to travel around the world. Abstract: Throughout the ages there have been numerous endeavours to find consistency and certainty in law. The most recent is the computerisation of legal decision-making. This paper analyses the extent to which the law can be viewed as a formal logical system and its reasoning as a deductive inferential exercise. In a system where judges have asserted that the way in which they go about their work is closer to an art than science, the logic of legal methodology must be brought into question. As computers of today are primarily algorithmic, logical machines, if law is not capable of being reduced to a set of rules, computerisation complications arise. The paper focuses on analogous reasoning, law’s peculiar method, to show the departure of legal reasoning from the laws of formal logic. Through the study of case examples, it becomes clear that there are significant obstacles to overcome if computers are ever to be valuable decision-making or decision support tools. Congratulations to the winners and to all entrants for an excellent pool of high-quality essays. 2004 SPONSORS TC Beirne School of Law , The University of Queensland Griffith University Law School University of Western Sydney Law School Faculty of Law, University of Melbourne Julius Stone Institute of Jurisprudence, Faculty of Law, University of Sydney Australian National University Law School Macquarie Law School University of New South Wales Law School

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