This thesis concerns the intersections of law and technology, referred to here as
‘technical legality’. It argues that reflection on technical legality reveals the
mythic of modernity. The starting point for the argument is that the orthodox
framing of technology by law – the ‘law and technology enterprise’ – does not
comprehend its own speculative jurisdiction – that is, it fails to realise its oracle
orientation towards imagining the future. In this science fiction as the modern
West’s mythform, as the repository for projections of technological futures, is
recognised as both the law and technology enterprise’s wellspring and cipher.
What is offered in this thesis is a more thorough exploration of technical
legality through taking science fiction seriously. This seriousness results in two
implications for the understanding of technical legality. The first implication is
that the anxieties and fantasies that animate the calling forth of law by technology
become clearer. Science fiction operates as a window into the cultural milieu that
frames law-making moments. In locating law-making events – specifically the
making of the Prohibition of Human Cloning Act 2002 (Cth) and the Motor Car
Act 1909 (Vic) – with the clone ‘canon’ in science fiction (specifically Star Trek:
Nemesis (2002)) and H.G. Wells’ scientific romances, what is offered is a much
richer understanding of how the cultural framing of technology becomes law than
that provided by the ‘pragmatic’ positivism of the law and technology enterprise.
The second implication arises from the excess that appears at the margins
of the richer analyses. Exploring technical legality through science fiction does
not remain within the epistemological frame. Each of the analyses gestures
towards something essential about technical legality. The law and technology
enterprise is grounded on the modern myth, which is also the myth of modernity – Frankenstein. It tells a story of monstrous technology, vulnerable humanity and
saving law. The analyses of the Prohibition of Human Cloning Act 2002 (Cth) and
the Motor Car Act 1909 (Vic) show that this narrative is terrorised, that the saving
law turns out to be the monster in disguise; that the law called forth by technology
is in itself technological. In extended readings of two critically acclaimed science
fictions, Frank Herbert’s Dune cycle (1965–83) and the recent television series
Battlestar Galactica (2003–10), the essential commitments of technological law
are exposed. Dune as technical legality makes clear that technological law is truly
monstrous, for behind its positivism and sovereignty its essence is with the
alchemy of death and time. Battlestar Galactica as technical legality reduces
further the alchemical properties of technical law. Battlestar Galactica moves the
metaphysical highlight to the essence of technology and very nearly ends with
Heidegger’s demise of Being in ‘Enframing’: monstrous technology and
monstrous law reveal a humanity that cannot be saved. However, at the very
moment of this fall, Battlestar Galactica collapses the metaphysical frame,
affirming technological Being-in-the-world over empty ordering, life over death.
This free responsibility to becoming that emerges from Battlestar
Galactica reunites technical legality with the mythic of modernity. The modern
denial of myth, which allowed Frankenstein to narrate technical legality, has been
challenged. Free responsibility to becoming means a confidence with myths; it clears the way for the telling of new stories about law and technology.

Technical Legality: Law, Technology and Science Fiction

This book explores how women from diverse backgrounds interact with the law in response to intimate partner violence, over time. Every year, millions of women globally turn to law to help them live lives free and safe from violence. Women engage with child protection services and police. They apply for civil protection orders and family court orders to help them manage their children’s contact with a violent father, and take special visa pathways to avoid deportation following separation from an abuser. Women are often compelled to interact with law, through their abuser’s myriad legal applications against them. While separation may seem like a solution, it often accelerates legal engagement, providing new opportunities for continued abuse. Countless women who have experienced intimate partner violence are enmeshed in overlapping, complex, and often inconsistent legal processes. They have both fleeting and longer-term connections with legal system actors. Their stories demonstrate how abusers harness multiple aspects of the legal process, and its actors, to continue their abuse. They also highlight the regular failure of legal processes and actors to comprehend the significance of nonphysical abuse. Women show how legal system actors’ common expectation that separation is a single event, rather than a process, has implications for their connections with law and the outcomes they achieve. From time to time, the women in this study attained the safety and closure they sought from law, sometimes in circular and unexpected ways, but their narratives demonstrate the level of endurance, tenacity, and time this often required.

Women, Intimate Partner Violence, and the Law

/pdf/bridging-the-gap-between-rhetoric-and-reality-can-the-law-txiix37b9g.pdf

Bridging the gap between rhetoric and reality: can the law enforce quality patient-centred care in Australia?

Is the Process of Family Dispute Resolution facilitating the Child’s Right’s To Culture? The realisation that children are social agents affecting, as well as being affected by those around them, is a relatively new idea. However, it is central to the knowledge that prompted affirmative action by both international and domestic governing bodies to enact legislation recognising children as rights holders. The Family Law Act 1975 (Cth) (FLA) now gives effect to the child’s rights to know and enjoy their culture, and to enjoy their culture with others from that culture. Studies into child development suggest that culture is acquired through intergenerational transmission and the socialisation of children by members of the child’s family and social group. While not all cultural practices will benefit children, generally exposure to familial and community culture gives the child a sense of belonging, self-worth and personal value. Culture is thought to aid the emotional, psychological and social development and adjustment of the child. Research also indicates that children deprived of cultural connections can experience emotional, identity and adjustment difficulties. When parents separate and are conflicted, in grief or cannot agree on the post-separation care of their children, the cultural supports and connections provided by parents, grandparents and even the wider cultural community, may be compromised. This risk suggests that professionals assisting parents in conflict following separation ought to ensure that children’s cultural connections are maintained. Family Dispute Resolution Practitioners (FDR practitioners) are one such group on whom this duty falls. Practitioners are also duty bound by legal responsibilities and ethical obligations to advise parents that any agreement they make should be in their children’s best interests, which includes the child’s right to enjoy their culture. Children’s right to know and enjoy culture is a passive right, and its facilitation is dependent primarily on the practitioner’s understanding and preparedness to facilitate

Is family dispute resolution facilitating the child's right to culture?

In December 2006, the Australian Parliament liberalized regulation governing stem cell research. This decision and preceding legislative review generated considerable public debate, which centred on objections to the deliberate creation and destruction of human embryos for research purposes. This paper draws on qualitative research conducted on the public debate surrounding this policy episode. The aim of this research was to examine how science and scientific knowledge are mobilized by participants in these debates to support their arguments. Data were collected from 109 newspaper opinion editorials as well as 23 in-depth interviews and examined using qualitative content and thematic analysis. Results of this analysis depict science as a rhetorical, moral and political resource that provides opportunities for participants to gain legitimacy, negotiate meaning and assert authority in the public domain. The mobilization of science in public discourse is discussed along with suggestions that are aimed at en...

/pdf/rhetoric-power-and-legitimacy-a-critical-analysis-of-the-4vtvwde9af.pdf

Rhetoric, power and legitimacy: A critical analysis of the public policy disputes surrounding stem cell research in Australia (2005–6)

The role of family lawyers in non-adversarial processes such as mediation and conciliation is quite different from that in adversarial litigation processes. This article conceptualises the non-adversarial role that family lawyers can play in mediation and conciliation processes to assist their clients to reach resolution of their disputes. We will highlight how this non-adversarial role will differ depending on whether the process is a facilitative or advisory process. In facilitative processes mediators merely assist with the communication process and do not suggest options or give views about appropriate settlement outcomes. In advisory processes mediators or conciliators use the benefit of their legal expertise to express views about suitable settlement outcomes, often suggesting a range of outcomes within which courts will be likely to make orders. We term this range the 'boundaries of resolution' and explain the key role of family lawyers to assist in this range being determined accurately by thorough preparation of their clients and cases.

How Can Family Lawyers Effectively Represent their Clients in Mediation and Conciliation Processes

In 2005 a Legislation Review Committee, known as the Lockhart Review, undertook a review of the Commonwealth legislation regulating human embryo research. The report that emanated from the review was released in December 2005. If the report recommendations are implemented by the Federal Government, Australian scientists will be permitted to create human embryo entities currently known as "human embryo clones" by the process known as somatic cell nuclear transfer to develop stem cell lines for research purposes. Many argue that stem cells have the potential to be developed into valuable medical therapies that could assist with, or cure, serious diseases such as Type 1 diabetes and Parkinson's disease. This article analyses the evidence presented to the Lockhart Review and the report recommendations. It assesses where the Lockhart recommendations would place Australia in terms of worldwide embryo research. It is argued that the Federal Government should fully embrace the recommendations so that Australia can progress stem cell research to its fullest potential.

The Lockhart Review: where now for Australia?

This article continues the critical analysis of ‘meaningful relationships’ in the context of the operation of the ‘twin pillars’ which underpin the parenting provisions. It will be argued that the attitude of judicial officers to three key questions influence how they interpret this concept and consequently apply the best interest considerations. 

Relevant to this discussion is an examination of the Full Court’s approach to the key parenting sections, particularly the interaction of the primary and additional considerations. Against this backdrop, a current proposal to amend the ‘twin pillars’ will be examined.

Continuing the critical analysis of 'meaningful relationships' in the context of the 'twin pillars'

The compulsory dispute resolution requirements in family law parenting cases create new roles and obligations for both lawyers and family dispute resolution (FDR) practitioners. This article will discuss how the legislative
provisions impact on both sets of professionals in practice. It will also highlight the increased non-adversarial role of lawyers and a new role for
FDR practitioners as “gatekeepers” to family courts in cases requiring FDR certificates.

Non-adversarial advocates and gatekeepers: Lawyers, FDR practitioners and co-operative post-separation parenting

In 2004, the Marriage Act 1961 (Cth) was amended to clarify that legal marriage requires a heterosexual union. This article will examine whether this amendment was consistent with the existing state of the common law, legislative trends throughout Australia and current societal values. It will also canvass the legal and social arguments in support of and in opposition to same-sex marriage. Arguments in support of legal same-sex unions based on equality before the law and international obligations will also be discussed. The recent amendments in Australia will then be contrasted with legal reforms in Canada aimed at ensuring that their Federal legislation is consistent with the equality provisions of the Charter of Rights and Freedoms. Finally, an alternative system of relationship registration will be posed as a possible compromise.

For Richer for Poorer, in Sickness and in Health: Should Australia Embrace Same-Sex Marriage?

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