The Brief Edition 2 2013 by Macquarie University Law Society

Macquarie University Law Society Magazine

g n i k c o ROur Future

Senator. Larrisa Waters, Valiant Warzecha, Emma Grimley Tim Wilson, Kat Lam, Tom Platt, Joanna Irving, Steven Canton, Tom Craven

The Brief | Volume 19, Edition 2

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The Brief | Volume 19, Edition 2

muls Macquarie University Law Society

Editor’s Introduction Greetings Dear Reader,

Contents 5

Presidents Intro

Environment Laws That Work by Senator. Larrisa Waters

Changing of The Guard, New Faces of the High Court with Valiant Warzecha

Putting Out The Fire on Smoking in Australia by Emma Grimley

The Cost of the Generation Above by Tim Wilson

Covering The Field: The Lack of National Surrogacy Laws by Kat Lam

JESSUP, The Macquarie Story with Tom Platt

The Aurora Native Title Internship Program by Joanna Irving

Mad Men or Bad Men? Advertisements and Complaints by Steven Canton

Back to the Future: Recognising Local Governments in our Constitution by Tom Craven

MULS semester party at The Ivy

“You know you’re a law student when...” with Rana Al Shilby

I hope you enjoy the second edition of The Brief for 2013 which is packed to the brim with quality student and expert contributions. There is an eye opening contribution by Queensland Senator Larrisa Waters from the Greens on environmental law reform and why environmental issues might be better dealt with by the Commonwealth instead of the states. It is a must read for those interested in environmental law reform. Keep an eye out for our great student contributions including one by Emma Grimley which puts the final nail in the coffin for tobacco consumption and Valiant Warzecha appears with another superb contribution about the recent appointment to the High Court. Again a must read for all law students. There are also numerous other great contributions covering everything from the issue of reproductive tourism to an interview with Macquarie’s very own JESSUP team. If you are interested in participating in the program it provides a valuable insight. Finally The Brief is simply not possible without the help of amazing people. We would like to thank everyone who has been involved in the creation of this edition. Thanks especially to the contributors and editors who make the publication of this great magazine that much easier. Finally thankyou to the reader for letting The Brief entertain you yet again. And please remember to like our page on facebook! Tom Craven | Editor

The Brief | Volume 19, Edition 2

[Acknowledgements]

B rief THE

Volume 19 Edition 2, May 2013 © Macquarie University Law Society 2013

muls Macquarie University Law Society

Editor Tom Craven Deputy Editor Tylie-Anne Guldemond Designer Nathan Li Contributors Valiant Warzecha Sen. Larrisa Waters Tim Wilson Emma Grimley Steven Canton Joanna Irving Tom Platt Kat Lam Rana Al-Shibly Sub-editors Rana Al-Shibly Olivia Lynch

The Brief | Volume 19, Edition 2

Editorial Review Angela Voerman, Manager, Campus Engagement Luke Salem, Director (Publications), Macquarie University Law Society Image Credits All stock images courtesy of Shutterstock.com. The Brief Online The Brief can be read online at <www.muls.org>, or on ‘The Brief’ Facebook page. Disclaimer All views expressed herein are those of the individual authors and do not reflect, in any way, the attitude of the Macquarie University Law Society. The Macquarie University Law Society does not accept any responsibility for the losses flowing from the publication of material in The Brief.

[Welcome from MULS]

Welcome

from the President Welcome to the second edition of the Brief for 2013! The release of the second edition marks the first of many exciting publications and events that are planned for the second half of this semester. MULS has worked tirelessly to ensure that your calendars are jam packed for the rest of the semester. This year SOS has been transformed and MULS has hosted a very classy Mid Semester

event at the Ivy Pool Bar. This will of course be followed by our annual Law Cruise later in the semester, with this year being even bigger than the last. Clerkship Week will be held in Week 10 and will coincide with the release of the Clerkship Guide. The semester will then wrap up with the Competitions Grand Finals that will not only host a very impressive bench of judges, but will include Macquarieâ&#x20AC;&#x2122;s most talented competitors.

I would like to take this opportunity to once again thank Tom Craven for putting together this amazing publication, as well as all the sponsors and contributors to this edition. I hope you all take the time to read this edition from cover to cover and I look forward to seeing you around at our upcoming events. Jessica Tasso | President

The Brief | Volume 19, Edition 2

[Feature]

Environment Laws that Work Threatened wildlife like koalas need the protection of strong national environment law, according to SENATOR LARISSA WATERS.

The Brief | Volume 19, Edition 2

“Throughout history the great environmental wins have been when a federal government stepped in.”

Image: Senator Larissa Waters

ustralia’s natural environment is unique and priceless: from the Great Barrier Reef to Tasmania’s ancient forests and the vast array of unique plants and animals that call Australia home. The world recognises Australia’s universal value through our many world heritage sites, and as Australians we know that our country is special. Yet our primary national environment law, the Environment Protection and Biodiversity Conservation Act, is failing us. Australia’s environment is under greater threat today than ever before. Climate change, habitat destruction, pollution, invasive species and disease, as well as a rapidly expanding resources sector, are all putting our valuable natural environment at risk.

Rather than strengthening our national environmental laws as is so desperately needed, the Federal Government is in cahoots with the Opposition and big business to ram through reforms that will weaken them. In the name of supporting business, the Federal Government is considering stepping back from its environmental responsibilities by handing these powers to the states. Throughout history the great environmental wins have been when a federal government stepped in. Without strong national leadership, Australia would have seen oil rigs throughout the Great Barrier Reef; the Franklin River dammed; the Daintree tropical rainforest destroyed and cattle grazing in the fragile ecosystems of the Snowy Mountains. Today, our national

treasures – both our wild places and species – are fighting for survival. Nothing but strong national protection is good enough. While the ALP needs to lift its game, don’t for a moment be fooled that the Coalition are going to be better. Tony Abbott has clearly stated that if he becomes Prime Minister he will hand national environment protection to his state cronies, and roll in local Council approvals to boot. In the recent swing to conservative state governments, we’ve seen a return of cowboy practices – shooting, logging and tourism developments in national parks, fast tracking of approvals process for destructive developments, slashing of environment departments and axing funding for critical environment programs.

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[Feature]

“We’ve seen continued decline of our threatened species and wild places, growing threats from invasive species and ongoing habitat clearing. It is time for new law that works.” The Australian Greens believe the federal Environment Minister should have the final say on destructive projects when our national heritage is at stake. Last year, I introduced a bill to the Senate to remove the ‘approval bilateral agreements’ sections of the Environment Protection and Biodiversity Conservation Act. These sections are dangerous – they allow the federal government of the day to hand over national environment protection to the states, so it can no longer step in to protect World Heritage Areas, like our Great Barrier Reef, or nationally threatened species from damaging development. Throughout the inquiry into my bill, lawyers, scientists, sustainable businesses and environment experts all expressed grave concerns about the severe consequences of handing federal environmental approval powers to state governments. The committee itself echoed these concerns in its final report, stating it was “not appropriate for the states and territories to exercise decision making powers for approvals in relation to matters on national environmental significance”. But sadly, politics and the influence of big business and mining magnates got in the way of the Labor-dominated committee recommending that my bill should be supported. The Greens will continue to advocate for national environment law to be kept in federal hands. For many years now, we have highlighted the flaws of the Environment Protection and Biodiversity Conservation Act. While the Act was an improvement in the laws at the time it was introduced in 1999, its track record has revealed its shortcomings and highlighted the need for laws that actually work. In the Act’s 13 years of operation we’ve seen the federal Environment Minister approve risky coal seam gas projects

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across prime agricultural regions, massive dredging operations within the Great Barrier Reef World Heritage Area, huge coal mines, the Gunns pulp mill, and ongoing logging in old growth forests. We’ve seen continued decline of our threatened species and wild places, growing threats from invasive species and ongoing habitat clearing. It is time for new law that works. The full impacts of development proposals should be considered Our current national environment laws are like silos, protecting only eight listed things - such as threatened species and World Heritage Areas - and ignoring all the other environmental impacts of a proposal. Our current laws don’t allow the Minister to consider the impacts of proposal on the climate or on the environment generally, and entire activities like forestry are exempt from the laws. The federal Environment Minister should be able to consider all the environmental impacts of a proposal. Our Constitution is broad enough to permit that, and the environmental crisis demands a comprehensive national response. So as not to require every single development to get federal approval, only “significant impacts” on the environment should require the Minister’s consideration. And rather than considering each project in isolation, the Minister should be obliged to consider cumulative impacts – the combined effect of all existing and proposed development on an area, to avoid the straw breaking the camel’s back. We need transparent decisionmaking with communities having a genuine say Australia’s environmental laws should require genuine community involvement and best practice decision-making. The community should have reasonable time to comment, and their involvement

actively supported. Ministerial decisions must be far more transparent and open to review. All too many communities around Australia are mourning the loss of their precious places, or fearing looming threats. From the fishing spot you went to with your grandparents becoming a coal port, to the rapidly disappearing wildlife near our cities to massive mines where once beautiful landscapes existed, we must allow communities to have a say in what is important to them. While proponents often take literally years to prepare voluminous environmental impact statements, local communities have unreasonably short windows to comment. And all too often their extraordinary efforts to comment on highly technical material comes to nothing with projects steaming ahead all the same. The refusal of environmentally destructive projects in Australia is a rarity. Despite massive community opposition the previous environment Minister approved the Gunns Pulp Mill in the Tamar Valley. The current Environment Minister has not yet knocked back one application for a coal seam gas project despite community opposition and the unknown consequences for our land and water from such projects. Decisions must be based on unbiased information Currently most of the information relied on by Government when deciding whether to approve major projects comes from the project proponent – those with the most to gain from securing a green light for their project. Government regulators rarely “ground truth” the accuracy of the environmental impact assessments (EIA) prepared by private consultants for their clients. Our current system fails to ensure that our decision-makers really know the tradeoffs they are making when they agree to the destruction of our natural heritage in return for the vast economic benefit claimed by proponents. This system fails to ensure our decision makers have an accurate picture not only of the environmental costs of projects, but also the true social and economic costs of the projects they are approving. The claimed “check” in the current system is community consultation, but it is wholly inappropriate to expect unpaid community effort to match the might of profit-driven project proponents. The

stakes are too high. Our environment and our communities deserve far better. Laws need to deliver clear environmental protection, not a process of sanctioned destruction At a time when our environment is in crisis, our national environment laws need to clearly oblige decisionmakers to protect and restore our environment. When talking about billion dollar resource projects that will have permanent and devastating effects on the natural environment, all aspects of such projects must be appropriately evaluated. A bit of extra time in the service of the environment is worth it for future generations. When it comes to our most vulnerable species and wild places, our obligations to future generations mean we need to take far more cautious approach – we need to make decisions today for tomorrow. The precautionary principle is too easily forgotten in the face of short term private profits. For

example, industries like coal seam gas that involve significant risks to our groundwater that we don’t even fully understand have to be reined in until the science is complete. Our current laws allow the federal Environment Minister to approve development which would send species to extinction or destroy areas through the death of a thousand cuts. That wide discretion to approve environmental destruction needs to be fettered, and some limits placed on what can be destroyed. With our environment in crisis, the onus must be on the proponents to satisfy the federal govt and the community for an approval. There is no point in trying to protect species and ecosystems for future generations when their natural habitats are without protection. Our national environmental laws need to actually protect habitat, and proactively manage species and areas to avoid them becoming threatened with extinction – and to help build their resilience in the face of climate change.

Lastly, our national environmental laws have to be supported by solid compliance and monitoring, and well resourced enforcement, so that we know our commitments are being delivered on - and big business knows it can’t get away with breaking the rules. The Greens will continue to advocate for strong, effective national environmental laws that protect the environment which sustains us, and empowers communities to stand up for the places and species that are too precious to lose. Senator Waters is the Australian Greens Senator for Queensland and an environmental lawyer. In 2011 she won the Law Association’s national Young Environmental Lawyer of the Year award and in 2012 she was Griffith University’s Law School Alumni of the Year. She is the Greens spokesperson on Environment, Biodiversity and Natural Heritage.

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The Brief | Volume 19, Edition 2

Changing of the Guard:

The New Faces of the High Court

VALIANT WARZECHA examines the recent changes on the High Court and what might happen next.

he time preceding the announcement of a new High Court judge is an extremely tense period of time for anyone with an interest in Australian Law. Law students particularly hold their breath every time a new Justice is appointed - eager to find out who will decide the future volumes of their weekly readings (and who to blame for no social life – assuming they are done). At the same time, they speculate as to whether there will be another progressive dissenter worthy of rock-star status in law schools around the country. Jokes aside, the changing face of the High Court of Australia (HCA) can have major ramifications for the Australian political and legal landscape. The last 12 months has seen the retirement of Justices William Gummow

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and Dyson Heydon under s 72 of Commonwealth of Australia Constitution Act 1901 (Cth). The George William’s coined “statute of senility” requires the relinquishment of their positions having reached the age of 70. Resultantly, Justices Stephen Gageler and Patrick Keane were appointed to the High Court and are expected to serve on the court for the next 16 and 9 years respectively. Justice Stephen Gageler Justice Gageler originates from New South Wales and gained his tertiary qualifications in Economics and Law from the Australian National University. He was an associate for Chief Justice Anthony Mason (when he sat in the HCA – a period of strong judicial

[Student Feature]

activism) before leaving Australia to gain a Masters of Law from Harvard Law School (and an insight into US jurisprudence). He returned to practice as a barrister in Sydney for 20 years and was made Senior Counsel in 2000. He brings expertise to the bench in in the areas of constitutional, administrative, revenue and commercial law. In 2008, he was appointed to the position of Solicitor General and ran several high profile cases including the government’s defence of the ‘Malaysia Solution’ and the ‘Plain Packaging’ Reforms. Notably he has no explicit judicial experience (reflected in his co-authorship or agreement with the majority in judgements so far) and is a black belt in Taekwondo – clearly a Justice not to be messed with. Justice Patrick Keane Justice Keane is from Queensland and attained his legal qualifications at the Univeristy of Queensland and later at Oxford (gaining knowledge of the UK’s diverging jurisprudence). He began practicing as a Barrister in 1978 and was appointed Queen’s Counsel in 1988, eventually becoming Solicitor General for Queensland. Justice Keane has substantial judicial experience having been appointed as a judge in the Queensland Supreme Court of Appeal and Chief Justice of the Federal Court of Australia. According to George Williams (Constitutional Law Professor at UNSW), he is one of the country’s leading constitutional lawyers – with a number of published papers on constitutional matters, remedies and consumer law. In the past he has been particularly critical of federal legislation (describing reading the Taxation Act as entering a parallel universe) and voiced strong opposition to the institution of an Australian Bill of Rights. The backgrounds and experience of Justices Gageler and Keane indicate their clout as legal minds worthy of sitting on the bench of the HCA. But the question is; how will their appointment affect the HCA? Implications for the political and legal landscape Williams highlights that the choice of new justices, whilst based on merit and experience, can be a highly political decision process with selection usually favouring ‘federal interests’, considering

“The backgrounds and experience of Justices Gageler and Keane indicate their clout as legal minds worthy of sitting on the bench of the HCA. But the question is; how will their appointment affect the HCA?” that the legislative and executive arms of government are the most common litigants in the HC’s original jurisdiction. It is notable that the new appointments reflect a shift in political power with the majority of the judges on the bench now appointed by the Labor government. Justice Gageler is politically neutral whilst Justice Keane is known to be a ‘Labour man’. Irrespective Professor Patrick Keyzer (Bond University Professor) believes that neither’s work has “betrayed...[a]…hint of political bias” and should not impact on judgements delivered. Williams affirms Keyzer’s sentiments, believing that the new justices’ appointments would’ve occurred irrespective of the political party in power. Though, future appointments to the HC may be subject to the political pendulum especially with the high probability of government changing later this year (affecting the replacement of Justices Crennan and Hayne in 2015). As an associate of Chief Justice Mason, Justice Gageler observed what he describes as the “romantic period…[of] great creativity and development in the law” for the High Court. When interviewed, he has expressed a liberal view to adjudication, referring to himself as “conservative” but a “realist” by acknowledging that judges need to modernise the law within reason (Rick Fenely - The Age, 21 August 2012). It appears that Justice Gageler will not illustrate overt progressivism but will update erroneous law or impractical interpretations of the constitution. This is possibly symptomatic of his lack of judicial experience – feeling no compulsion to observe the habitual ‘legalism’ that graduates from the lower courts would be accustomed to. Concurrently, his exposure to US

jurisprudence may allow a unique perspective on Australian law and adaptation of foreign domestic laws (though perhaps not as far reaching as the law of Botswana as per Justice Kirby). Justice Gageler’s view appears to be more progressive than that of the current Chief Justice Robert French who, according to George Williams has “progressive views but is a legal traditionalist”. Justice Keane has similarly been viewed as a conservative judge and is likely to be a more cohesive force within the court than his predecessor Justice Heydon (who, post-Kirby, became the great dissenter of the HCA - dissenting in 45% of his total judgements). Justice Keane is renown for being the fastest judge to deliver judgement on the Federal Court and may mark a new era of efficiency for the HCA – arguably at odds with rumours that he prefers to write his judgements by hand. However, in terms of explicit attitudes to constitutional matters, his approach in the Federal Court has been seen to be favourable to ‘state rights’ and so may see an opportunity for states to extend their legislative powers. As Nicola Roxon (former federal Attorney General) stated, it is hard to characterise how exactly the new judges will perform on the bench of the HCA, however it appears that law students can breathe a sigh of relief with a low probability of dissenting judgements (and readings). Such certainty is undermined by the transformation of Justice Heydon from a conservative majoritarian to the great dissenter post-Kirby. As for the specific influence that the new justices will have, the consensus is that the HCA will not dramatically change its course as a relatively conservative bench.

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Putting out the fire on smoking in Australia Hope for the tobacco industry reduces to embers as the Australian Government tightens its grip, in the hope of achieving a safer and healthier smoke-free future. EMMA GRIMLEY writes. I know what you’re thinking. Spare me the sermon. You’ve heard the statistics a thousand times. Fragments of Government-endorsed television ads pass fleetingly through your mind as you read the headline of this article. “Smoking kills”. “Cancer”. Blah de blah blah blah. The truth is, in an article hoping to explore government attempts to reduce the levels of smoking in our society we cannot avoid the fact that 15.1% of 14 year olds and older continue to smoke in Australia. Further, in 2003 it accounted for approximately 15,511 deaths, and for 7.8% of the total burden of disease and injury. In the period of 2006-7 smoking accounted for 42 356 hospital admissions. In 2004-5 the social cost of tobacco amounted to $31.5 billion. These figures represent waste of

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public resources, money, time and most importantly life. It is based on this reasoning that the Australian Government has implemented a world-first Tobacco Plain Packaging Act 2011 (Cth) and the Tobacco Plain Packaging Regulations 2011 that came into effect on 1 December 2012. Commenting on the Act, The Hon. Nicola Roxon, then Minister for Health and Ageing, proclaimed that “the glamour is gone from smoking and cigarettes are exposed for what they are: killer products that destroy thousands of Australian families”. The Act’s title tells its own purpose: to remove colours, brand imagery, corporate logos and trademarks from tobacco packaging, replacing these with regulation font sizes, health warnings and other legally mandated information. This decision was founded on compelling marketing and psychological research that discovered altering packaging reduced the status signal of tobacco products. A seminal 1995 Canadian report titled ‘When Packages Can’t Speak: Possible Impacts of Plain and Generic Packaging of Tobacco Products’ proclaimed plain packaging is perceived as dull and boring, cheap, and permitted greater reception to health warnings. Essentially, this legislation has removed

the core of the selling power. The Act’s accompanying Enforcement Policy states amongst its options as education, notice of alleged compliance, written warnings, infringement notices, civil penalties and criminal prosecution as effective methods to ensure successful implementation. Angrily, the tobacco industry took dispute to the world-first legislation recently, debating its validity in the case of JT International SA v Commonwealth [2012] HCA 43. The plaintiff companies argued that the Act permitted acquisition of their intellectual property rights, other than on just terms, thereby violating s 51 (xxxi) of the Constitution. However, the High Court’s decision demonstrated the united front of a government determined to butt-out smoking. In their decision they held that acquisition of property requires a proprietary interest or benefit, of which the legislation did not offer the Commonwealth, as it was no different to mandating warning labels on other products. Secondly, they stated “no one other than the tobacco company that is making or selling the product obtains any use of or control over the packaging...Of course their choice about appearance is determined by the need to obey the law. But no-

[The Agitator]

“Unbelievably, tobacco products are continually included in retailer shopper loyalty programs in Western Australia and Tasmania. Even more surprising to me, is that there is an absence of regulatory restriction on ingredients of tobacco products in Australia, such as menthol and other additives which are directly related to tolerance of the tobacco taste.” one other than the tobacco company makes the decision to sell and to sell in accordance with law.” This led the Court to reason as the Commonwealth is making no public announcement or advertising on the packaging, there could be no benefit. Beyond this seminal case, the fight against smoking continues. The National Tobacco Strategy 2012-2018 pertains an overwhelming emphasis on tackling social determinants of smoking such as unemployment, family breakdown and poverty; somewhat sweeping statements that require strategies and measures too complex and varied to be mentioned here. What can be said, is that to derive success in this campaign, methods exterior to legislative packages must be utilised. For instance, the ‘My QuitBuddy’ and ‘Quit for You, Quit for Two’ apps have already derived 60000 downloads since their creation. In ‘My QuitBuddy’, users utilise quit tips, motivational messages, countdown reminders, record their own messages and even a panic button providing a range of distractions when craving. ‘Quit for You Quit for Two’ helps pregnant women quit smoking in the same way, providing them not only with the same features of ‘My Quit Buddy’, but also facts about the baby’s development and ideas of what to spend money on that is saved from cigarettes. The Strategy recognises the importance of harnessing social media and pay-tv more effectively to increase coverage of educational campaigns. Another classic and logical technique has already derived great success. The premise is simple: increase a product’s cost, and watch the consumer levels drop. Reducing the affordability of cigarettes have been a long-standing feature of government attempts to reduce smoking. From January 1999 to December 2006, a dollar price

increase saw a decline of 2.6% of low income groups from smoking, and 0.2% in high income groups. Also, under the Pharmaceutical Benefits Scheme this year there has been a decrease on the price of quitting patches for concessional and general patients. To me, these two economic strategies seem a winning duo. The 2012-13 Federal Budget included a change to the duty-free concession on tobacco products, only permitting 1/5 of the amount of cigarettes or tobacco products previously permitted. Aside from the economic incentives surrounding patches, it can be suggested that greater awareness needs to be developed concerning other methods available to smokers. Electronic cigarettes are available to the Australian market, although few people are aware of their existence. Although still controversial devices, they principally remove the health risks derived of tobacco smoke, whilst continuing to provide the smoker with the nicotine they crave. The World Health Organisation has stated, whilst in the meantime they may be considered a useful smoking cessation aid, this claim is not yet legitimised by a clinical study that could manage these devices correctly, in addition to a regulatory framework. Although applauding the extensive regimes already introduced, I believe greater attention ought to be drawn to the jurisdictional differences in legislation which detract from the all-encompassing success of other ventures such as the plain packaging legislation. For instance, it is conceivable that a smoker might travel across jurisdictions, and thus encounter differentiated rules on smoking in particular settings. Further, I cannot fathom how the most serious of approaches to smoking can permit

smoker A of one state to smoke in a given area, but forbid another to do the same in another state. For instance, ACT, SA and Tasmania are the only jurisdictions to have banned smoking in all enclosed areas of casinos. All jurisdictions except Victoria have banned smoking in outdoor dining areas. In Victoria, local governments have been left to construct delegated legislation banning smoking in community-specific outdoor locations. Unbelievably, tobacco products are continually included in retailer shopper loyalty programs in Western Australia and Tasmania. Even more surprising to me, is that there is an absence of regulatory restriction on ingredients of tobacco products in Australia, such as menthol and other additives which are directly related to tolerance of the tobacco taste. Arriving at the occasion to conclude this article, I have a greater appreciation of the trying efforts of all Australian governments and their associates to attempt to conquer what is one of this country’s most deep-seeded health and social issues. It is obvious that no single legislative package will suddenly reduce that last 15.1% to a very idealistic zero, and that this is an experimental and long term process. I can be proud knowing that through the plain packaging legislation, Australia has labelled itself as a front runner, as a nation taking seriously the effect that smoking has on all facets of our society. In the meantime, until that 15.1% trickles down into the single digits, we can be assured there is much to do in attempts to penetrate the socialisation of smoking and streamline jurisdictional differences, in addition to harnessing non-legal tactics to their maximum effectiveness. For the sake of our communities, I believe these are things we can all look forward to.

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The Cost of

the Generation Above TIM WILSON from the Institute of Public Affairs talks about our future

he greatest public policy challenge of our lifetime will be making our social safety net sustainable.

Most of the developed world is being crippled by debt. European countries are getting bail outs that barely address their longer term budgetary problems created by compounding excessive

road but are only a few steps behind. During his recent tour through Australia, the Vice President of International Programs at the Atlas Economic Research Foundation, Tom Palmer, argued that Australia had twenty years to steer a different path or end up like Greece. He argues that the United States only has around ten

“Baby boomers continue to hold significant assets, particularly in property, inflating the costs that Generation Y have to pay just to get their foot on the property ladder.” government spending of taxpayer’s dollars. The United States faces a uncertain future with structural spending likely to continually increase debt levels and annually make any correction harder to address. While Australia’s comparatively low debt levels may give us comfort, we are travelling the same

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years. While Palmer’s comments may appear inflammatory, his warning is not inconsistent with the Australian Government’s own conclusions. During the Howard Government, the Treasury was commissioned to write an Intergenerational Report

[Cover Story]

that looked at the long-term budget problems facing Australia caused by an ageing baby boomer population that is not being replaced by equivalent younger workers. The 2010 edition of the Intergenerational Report released by Treasurer Wayne Swan shows that the number of people aged 65 and over will more than double in nominal terms as well as a share of the population. The problems are not just in terms of people, but also in expense with retirees generating little income, while also incurring huge costs from the pension, access to aged care and health services. According to the Productivity Commission up to 20 per cent of a person’s lifetime health costs are incurred at the end of their life. Consequently cost of health and aged care will double and the cost of the old age pension will increase by up to half by 2050. Soberly, the hard data that has come in since the 2010 report shows real costs are already exceeding the projections. That leaves one generation heavily dependent on the benefits that another generation is expected to provide through their taxes. What is often forgotten is that Generation Y will have to double down on the costs. Baby boomers continue to hold significant assets, particularly in property, inflating the costs that Generation Y have to pay just to get their foot on the property ladder. They have also enjoyed discounted tax rates as they funnelled their money into superannuation with the expectation that they will be able to take out the dividends without paying tax. Throughout their lifetimes, Generation Y is or will, pay for their own education, private health insurance, superannuation and aged care. Meanwhile Generation Y is paying for the full costs of socialised health and welfare services for a generation larger than themselves and will concurrently have to pay for their own costs, while also paying off the debt legacy of the Rudd and Gillard governments. Worse, as debt keeps accumulating yearon-year the level of cutbacks needed increases with it to avoid Australia descending into an irretrievable debt spiral. The future is grim unless we act to stop the entire Baby Boomer cost burden falling onto our shoulders.

“The United States faces a uncertain future with structural spending likely to continually increase debt levels and annually make any correction harder to address. While Australia’s comparatively low debt levels may give us comfort, we are travelling the same road but are only a few steps behind.” An essential component of making our nation’s finances more sustainable is to stop any increase in debt levels, but the only way that can be achieved is through significant public sector reform that reduces spending. While the universal superannuation has been operating for twenty years, many simply do not have the savings necessary to pay for their retiring years, especially with life expectancy continuing to grow. Ultimately, that means people will continue to be dependent on taxpayers for their basic livelihood. That does not mean they should not have to carry the burden. As harsh as it may sound, attitudes to retiring Australians selling the family home to finance aged care should be revisited to stop the cost falling onto the taxpayer. But the biggest concern is ballooning health costs at a time where people are living longer and scientific advancement is delivering improved treatments with complimentary costs. It is essential that Australia begins reforming universal healthcare that encourages people to save for their own health costs, rather than the cost always falling on the government. The Medicare levy surcharge that increases taxes on those who do not take out private health insurance partly addresses this challenge, but reform needs to be broader to increase people taking responsibility for their health, ensure they better understand the consequences of their lifestyle choices and accept the financial consequences as well.

of cover. Both Singapore and the Netherlands have a form of universal health cover where costs are not financed by the government. By comparison, the Netherlands has compulsory private health insurance with taxpayer-funded equity payments for those who cannot afford it, whereas Singapore has a form of compulsory individual health savings account that operates like our superannuation system where people make contributions and draw down on it when they need it. Reforming healthcare refocuses the debate away from the government being prepared to finance everyone’s healthcare toward only those who need it. It has the dual benefit of reducing costs while ensuring that those most needy receive support while the vast bulk of us have the choice and freedom to take responsibility for our own health. The system can also be reformed to reward good behaviour, unlike the current form of Medicare which allows unhealthy people to financially free ride on the diligence of the healthy. Considering the intergenerational ticking time bomb the challenge Australia faces the challenge is not if reforms will take place but merely how and when. For the sake of Generation Y, we should hope it starts soon, otherwise our adult lives will primarily be dedicated to working to pay for our parent’s retiring years with little, if any, security for when we reach their current age. Tim Wilson is a policy director at the Institute of Public Affairs – www.ipa.org.au

Reforming universal healthcare does not mean people need be left out The Brief | Volume 19, Edition 2

Covering the field: the lack of national surrogacy laws KAT LAM explores the inconsistences of Australia surrogacy laws and the future of the reproductive tourism.

ith the recent changes made to Indian surrogacy laws, prospective Australian parents who are undergoing the process of starting a family through surrogate arrangements are left stranded in a mess of legal red tape and uncertainty. Reproductive tourism is gaining traction as a method for both couples and individuals to have their own biological children where previously this option was unavailable. But with inconsistent state and federal laws and incomplete legislative framework, the issue of surrogacy has become a legal headache. With an increase in modern day celebrities taking the surrogacy route, media coverage has brought the issue to wider public attention. With access to wide resources, celebrities are able to go down the avenue of

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surrogacy with rather more ease than the average family with cost restraints. These families often pursue the path of reproductive tourism in order to achieve their goals of having a baby to call their own. Reproductive tourism is another form of medical tourism where clients travel overseas and seek fertility treatments because they are unavailable in their own countries. A quick Google search reveals that clinics that offer reproductive services are wide ranging and are based in countries such as Thailand, India, Georgia, South Africa, the U.S and Ukraine. These clinics offer assisted fertility treatments such as IVF, commercial surrogacy and egg and sperm donations. Commercial surrogacy is rather lucrative in the U.S and as parents are given the option of embryo screening and

genetic selection, it remains a popular destination for parents-to-be to consider when deciding to start a family. In India commercial surrogacy is on offer in several assisted-reproductive clinics. A woman agrees to carry another couple’s children to term. The couple will then keep the child as their own. The parties enter a contract where the surrogate mother is paid for this service. On a personal level the use of a body as a ‘rent-a-space’ service is unpleasant to me. But perhaps my western way of thinking clouds this view. Certainly some women – those from low-medium economic statuses – see reproductive tourism as a way to bring much-needed income to their families. This is not unlike the cash-fororgans debate. While repellant to us in the developed world, these schemes are a way in which individuals provide

[Student Contribution]

“On a personal level the use of a body as a ‘rent-a-space’ service is unpleasant to me. But perhaps my western way of thinking clouds this view. Certainly some women, those from low-medium economic statuses can see reproductive tourism as a way to bring much-needed income to their families. This is not unlike the cash-for-organs debate.” for their families where opportunities are rare and resources are scant. Commissioning parents, on the other hand, are able to start families where they were previously medically and economically unable to do so. And so, as it is widely emphasised by reproductive tourism advocates, you can view this system as a win-win. But when weighing up the benefits against interests of the children of such arrangements, legal and ethical dilemmas arise especially in relation to issues of legal citizenship. With the recent legislative changes to surrogate arrangements in India, reproductive tourism has become an issue with parents who are currently under contract with clinics specializing in surrogacy arrangements. Currently in Australia the only recognised form of surrogacy is altruistic surrogacy. That is surrogacy without any commercial element. To undertake the procedure in India, expenses including airfare total to around $30,000, a third of the price that it would be were it undertaken in the U.S. But now laws have changed so that parents need to have been married for two years to be able to enter into a commercial surrogacy arrangement. Homosexual and de facto relationships are excluded. Furthermore, surrogacy must be legal in the country that the parents are from. In Australia, commercial surrogacy is outlawed in all states and territories except for the Northern Territory where there is no surrogacy (or plans to introduce) legislation. So to be considered for a

commercial surrogate arrangement in India, the parents must be married for two years, heterosexual and from the Northern Territory. So where does that leave Australians who are currently engaged in unfinished surrogacy arrangements? It is unclear as to what will happen with surrogate-born children whose parents do not meet the new requirements. The children have been left in a type of legal limbo where they may possibly be left stateless. It is not known whether the children will be able to obtain visas to leave the country while the intended parents themselves may face prosecution. So, where the number of surrogate-babies born in India to Australian parents previously numbered in the hundreds per-annum, this number is likely to decrease dramatically in the coming years. But it is doubtful whether these restrictive laws will stop the flow of parents seeking international solutions to their fertility needs. Strangely enough, commercial surrogacy is outlawed at the state level but not at the federal level. In NSW, under the Surrogacy Act 2010, residents are committing an offence if they enter into overseas commercial surrogacy arrangements. The maximum penalty is 2500 penalty units if conducted by a corporation or 1000 penalty units and or imprisonment for two years under any other case. A child who is born overseas to an Australian citizen does not automatically obtain Australian citizenship. However the intended parents of a surrogate child can apply

for citizenship or permanent visa for the child. All they need to demonstrate for citizenship is that the child is a biological child of an Australian citizen. Applications for Australian citizenship are determined according to the criteria contained in the Australian Citizenship Act 2007. To be eligible for citizenship by descent, a child born overseas from a surrogate arrangement must have had a parent who was an Australian citizen at the time of their birth. And then comes the complex DNA testing in order to ensure that the child is actually the biological child of at least one of intended or commissioning parents. Then you have to prove that they are the legal parents. So if you have been following so far, it’s becoming clear that while state law says commercial surrogacy is illegal, federal law systematically sets out the requirements of obtaining citizenship for surrogateborn children in great detail. Legal requirements (if undergoing the process in India) further necessitate that the intending parents must submit evidence that they have obtained legal advice from a lawyer who specializes in Indian family and or contract law to ensure that the contract was a) consensual, b) legally enforceable, c) whether full legal rights are given to the intended parents and d) all parties are still consenting to agree to the contract after the birth of the child. The conflict in state and federal legislation is an issue affecting not only surrogate-born children in India but globally. The absence of comprehensive and compatible state and federal laws in Australia add to the already complex citizenship issues faced by children born from overseas commercial surrogate arrangements. It has been suggested that a way in which these issues may be avoided is through legalizing commercial surrogacy in Australia, a decision that has enjoyed moderate success in some states in the U.S. This could be a solution in which potential parents would be able to avoid the quickly evolving citizenship and visa laws of other countries thereby maintaining the best interests of the child. So while reproductive tourism seems like a solution to serious and sensitive fertility issues, it should be kept in mind that these arrangements made overseas are often fraught with legal and ethical complications.

The Brief | Volume 19, Edition 2

Image: 2012/13 Jessup team Emma Gorrie, Timothy Lou, Andrew Clark and Dominic Tran, with Coach Benjamin Roe and Convenor Margaret Kelly

JESSUP

The Macquarie Story

TP: So, we’re in W3A, a building that I understand you guys spent a bit of time in over the summer. How does it feel being back here? EG: It’s strange for it actually to be daylight. DT: It’s strange seeing people around campus as well.

Every year Macquarie University selects a team of 4-5 law students to compete in the most prestigious legal competition in the world – the Philip C. Jessup International Law Moot. A summer-long journey of research, all-nighters and compromis (but not necessarily compromise), all leading up to the National Championship in Canberra in February, is in many ways the quintessential law student experience. 2013 Director of Competitions TOM PLATT sits down with the 2012/2013 Macquarie Jessup team, EMMA GORRIE, TIMOTHY LOU, DOMINIC TRAN and ANDREW CLARK to talk moots, memes and the merits of competing in external competitions.

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TP: Weren’t there other summer courses running at the time? EG: For a certain portion of the summer maybe. No one else was here Boxing Day or New Year’s Day though. AC: Or Christmas. TP: Yikes. Okay we’ll get into the legendary Jessup workload in a little bit, but to start from the beginning, for those people that don’t know anything about external competitions, what is ‘Jessup’? TL: Jessup is an international mooting competition. It’s a competition you work on over the summer. The aim for Australian universities is to come top two in the Canberra February rounds to qualify for the international rounds in

[Competitions]

Washington in March. The “compromis” comes out in September though. EG: So, the “compromis” is basically what Jessup calls the problem. TP: I appreciate it was probably a very complex compromis, but broadly speaking, can you tell us what this year’s problem about? EG: It was about the legal issues surrounding climate change. The problem involved a hypothetical island country called Alfurna sinking under rising seas, so it touched on issues like statehood and climate change refugees... DT: Haha are you sure you want to use that term? EG: Haha okay, well that’s a controversial term, but that’s what I’m going to call them. Alfurna sympathiser all the way. TP: Okay so that all sounds very topical. TL: Definitely, and in more than just the climate change issue. A big issue was statehood which is particularly relevant right now with Palestine only just getting non-member observer status. There were also sovereign debt issues we worked on which is obviously an issue prevalent right now with various European countries like Greece. TP: So let’s get this clear. From the outset, what is the goal that you guys are working towards? DT: So written submissions were due mid-January. We had to prepare 9500 word submissions for both sides. TL: But then that doesn’t include the summary of the facts, statement of jurisdiction and all the peripheral stuff like a table of contents that goes into a submission. Emma was our Microsoft word wizard so she handled that. TP: So what was the team dynamics like? If Emma had the technical expertise, what did everyone else bring to the team?

TL: Well I had this great ‘innocent passage’ argument that I had been working on for hours on end. But then after a particular practice moot we realised that the argument was completely irrelevant so I had to make the most painful decision to trash the submission. It resulted in a three day period in which I had no more than 4 hours of sleep a day. It culminated in me deleting one of our submissions. I wasn’t everyone’s favourite team member at that stage. I think they told me to go home. TP: That would have to have been the teams’ low point over the summer? EG: I would think the team’s low point would have to be Pedra Branca. TP: Pedra Branca?

sleeping bags involved. I think Tim got in trouble for sleeping in the staffroom? TL: Sometimes you just need to get a job done. DT: I’d done the Shine Torts moot before. I thought Jessup would be similar, just over summer – Come to uni for a little bit each day. Then go to the beach or something. EG: The only time we got sunburnt was when Andrew got burnt through the window. TP: So it sounds gruelling to say the least. But at the same time I think I’d have trouble trying to think up a task that could me more rewarding for a law student. AC: Suicide could be as rewarding.

EG: It’s the name of a case. Andrew was trying to incorporate this ludicrous argument. AC: Ahh Pedra Branca and Middle Rocks and South Ledge in the ICJ in 2008. It was quite simple really. Let me assure the readers though that you have not lived until you have had a screaming match with Margaret Kelly in the Moot Court at 1 o’clock in the morning. EG: I remember my low point though… Ben says to me, “Emma, you look tired. I think you should go home and come back at 6am.” It was 2am at the time. TP: Okay so this year that you guys had the opportunity of being coached by former Jessuper Ben Roe. What did Ben do for you guys? TL: Ben was fantastic. He really went above and beyond. He was there with us at 3am when we were printing submissions. DT: He helped organise practice moots with past Jessupers, Macquarie academics and other professionals. EG: Don’t forget delivering us pizza.

EG: Tim specialised in losing all of our work.

TP: Okay so it sounds like the reoccurring theme is that Jessup is a lot of work. Let’s be clear, just how much of a commitment was it?

TP: Tim, looks like you have some explaining to do.

EG: There were definitely 24 hour plus stretches at uni. Yes there were

EG: We did at one point look up whether six floors was high enough. Our office was on the sixth floor. AC: We concluded it probably was. TL: I thought the practice moots were enjoyable and enormously beneficial. So long as your written submissions are handed in, you have somewhat escaped hell. At that point, we were going into the city, going to law firms and practicing with legal professionals. The wealth of feedback that we received was amazing. I’m definitely writing better now as well. DT: Definitely. I think we were all more concise by the end. TP: So you mentioned the practice moots. You guys only started practicing oral submissions after your written memorials were submitted, meaning you had almost three weeks to dedicate to orals? How did things change at that point? TL: Once we started on oral submissions, we probably had 40 practice moots, 2 a day. You would do the first moot, then you spend the time in between tweaking arguments, and before you know it you’re mooting again. And then you spend your night tweaking your arguments again. EG: By the end, Andrew and I were being forced to do moots without notes.

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[Competitions]

Andrew Clarke: “When you get knocked out, you are depressed for a night. But when you wake up in the morning there is nothing you want more in the world than to do it again.” TP: Sounds like you must have been pretty prepared by that point. So let’s talk about the actual competition – how was it structured and how did you go? AC: So there were four preliminary rounds. We came up against UNSW, Bond, QUT and ANU. We won against QUT… and had knife edge results against Bond and ANU. EG: And Bond and UNSW are now both going to Washington, so we had a tough draw. TP: And obviously the standard is incredibly high to begin with. AC: With 40 practice moots we were actually probably on the lower end of the number of moots that had been conducted by the various teams. There were other teams like UWA who had been preparing all year that had easily done 100 practice moots. DT: Some universities just have such an entrenched Jessup culture. AC: Also, our team was unusual to begin with. We were all third year students so none of us had even actually studied international law yet. There were plenty of teams that had also only had the 4 month prep the same as us, but the difference was that they were 5th years and didn’t have to waste the first month figuring out what jus cogens and sui generis meant. EG: It’s generally agreed that the Australian rounds of Jessup are the most competitive. You get to Canberra and you share your stories with the other teams and you can see the crazy hours were a common experience with all Australian unis. DT: It’s reflected in the international results.

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AC: 6 out of the last 10 international Jessup competitions in Washington have been won by Australian universities. TP: In terms of the advocacy, what did you find the good teams were doing better than other teams? AC: It came down to the fact they were so smooth. Their timing was perfectly allocated. They would have 6 points to cover and they were like a metronome. DT: If you look at the winning Jessup teams and their orals, they know everything about them. All the cases and principles off by heart. TP: So I’m glad to see that, bar Dom, you guys are all mooting again this semester in our Clayton Utz Senior Mooting Competition. You must fancy your chances? EG: When the question for the first moot came out, it was like “pffft, 5 pages”. AC: I was a little bit pleased when after the first round the first comment of the judge was “you did Jessup just recently, didn’t you?” TP: It must have been tempting after your summer of working together to come back together as an internal team? AC: The team has made a decision to give ourselves space. I think the other members were concerned that if they heard any more memes their heads would explode. Think: “Do Jessup they said. It would be fun they said.” DT: There has been talk of us all applying for another external together, maybe something like the Gibbs moot down in Canberra. EM: We could go back to Mooseheads.

TP: Mooseheads? AC: A bar down in Canberra. As you might imagine, once everything was said and done, there was some partying to be had. To this day, the last text message I have received from one teammate who shall remain nameless was “Yeah. Dude I had salt everywhere. I blame you.” TP: Guys, closing thoughts. Moving past the long nights and the “Pedra Branca” affairs – to the law students who may have competed in some of our internal competitions but who haven’t considered something like Jessup, what would you say to them? AC: When you get knocked out, you are depressed for a night. But when you wake up in the morning there is nothing you want more in the world than to do it again. EG: And win. AC: And win. DT: I think that sums it up. EG: It’s like the travel bug. TL: The benefits are immense. Everything in terms of your legal skills, oral skills, written skills. EG: You can also probably count on a dressing lesson from Margaret and Ben – vetoing all your ties. DT: The chance to be tutored personally by Margaret every day is incredible. EG: Margaret is a genius. You have both her and all the resources the law school can provide on hand to learn as much as you possibly you can. TL: It’s a once in a life time opportunity. Applications for the 2013/2014 Jessup team will be opening soon. Students should check their student emails for calls for applications for both Jessup and other external competitions.

[Student Experience]

National Aboriginal Sporting Chance Academy (NASCA)

JOANNA IRVING recounts her experience of the Aurora Native Title Internship Program

t is easy to sit back at home during the holidays, but this year I felt that was too easy. I wanted to challenge myself and work with an organisation that aims to help individuals and also empower communities, while at the same time gain more legal and research experience. After an information session at the end of a university lecture, I realised that the Aurora Project was the perfect organisation to help me reach this goal. The Aurora Native Title Internship Program supports Aboriginal organisations throughout Australia and provides opportunities for all Australians to gain experience in the Indigenous sector. The Program offers legal, some social science as well as anthropology unpaid internships and matches students and recent graduates with an organisation that suits their skills, past experiences and degree. After successfully passing through the application process, I was offered a six week internship with the National Aboriginal Sporting Chance Academy (NASCA).

as it taught me about the importance of cultural pride for Aboriginal people, and working with communities to encourage social change.

Before my internship, I had already completed the Indigenous Peoples and the Law subject, which taught me that Aboriginal cultures are complex and diverse, but also something I would love to learn more about. NASCA was the perfect placement organisation for me

During my time at NASCA, I researched and created contract proposals in collaboration with a law firm. This proved to me that my law degree could be useful in an organisation that promotes community development, which is the field I hope to work with in

NASCA was established in 1995, by former Aboriginal rugby league player David Liddiard, with the aim to encourage Aboriginal participation in sport. NASCA has now expanded and delivers educational, health, sport and cultural programs for Aboriginal students, with the aim of ‘closing the gap’ and improving the lives of Aboriginal youth. NASCA runs ARMTours (Athletes as Role Models) where role models are taken to four remote Northern Territory communities, Careers and Aspirations Programs and Sporting Chance Academies, run in Dubbo and South Sydney. I mainly worked with the Careers and Aspirations Program, the purpose of which is to inform Aboriginal students about career opportunities available to them and to educate them on the importance of attending and finishing school and living a healthy lifestyle.

the future. My research into NASCA’s history allowed me to understand how the organisation has grown and the positive impact NASCA’s programs have had on Aboriginal students and communities. This project made me feel even more privileged and grateful to be a part of an organisation dedicated to making a difference. I believe that NASCA’s programs and their welcoming dedicated staff members have contributed to closing the gap on Aboriginal disadvantage. So if you start thinking that you do not know what to do these holidays, but you want to gain experience - why not at the same time take on a new challenge and work with an organisation that gives you a greater understanding of the Aboriginal sector and/or community development? Take the challenge. It is worth it. You can apply to undertake an internship with Aurora during the summer or winter university holidays. Visit www.auroraproject.com.au/ nativetitleinternshipprogram for more information.

The Brief | Volume 19, Edition 2

Mad Men or Bad Men?

Advertisements and Complaints STEVE CANTON examines the formal advertising complaint process

dvertising is becoming more than just television commercials and catalogues; it is becoming a major part of our culture. There are television programs like Mad Men and The Gruen Transfer, stunt ads like the now historic Carlton Draft Big Ad, product placement in movies like Skyfall and advertisements on Google and Facebook. Whilst most of us either enjoy or are indifferent to these advertisements some members of society are so annoyed or offended by them that they complain to an agency known as the Advertising Standards Bureau. Since it hears more complaints the Advertising Standards Board is more likely to receive new or unique complaints. Recently the Advertising

The Brief | Volume 19, Edition 2

[Student Contribution]

“Advertising is just as much about complaints and the complaint process as it is about the actual advertisements.”

complaints significant is that they are the first time in which the Advertising Standards Board has held companies accountable for comments of the general public on Facebook. This could have dire consequences for companies advertising on Facebook especially when you consider that a company a large as Smirnoff, which has 9.1 million likes, now has to monitor every post on its page. Sex Sells If Facebook is the innovative area of advertising, the classic area falls under the famous saying that “sex sells.” The problem however is that the increase in sales often correlates to an increase in complaints. As a result many of the complaints received by the Advertising Standard Board relate to the use of sex in advertising. In most cases, these complaints are usually an overreaction and are thus dismissed. The following are three examples of complaints based on sexual innuendo that were determined in February 2013.

Standards Board determined complaints against advertisements made on the VB Beer Facebook page (Case Number 0272/12) and the Smirnoff Vodka Facebook page (Case Number 0272/12). What made these complaints unique was that they were against user comments on the page rather than against comments made by VB or Smirnoff. The complaints were made on the basis that the user comments were sexist, racist, discriminatory, encouraging irresponsible drinking, or using obscene language. Ultimately the decisions in these cases are inconclusive as despite having similar material posted on their pages, the Smirnoff complaint was dismissed whilst the VB complaint was upheld. Yet what makes these

1. Burger Urge Advertisement (Case Number 0036/13) – The website advertisement is an ‘image on the Burger Urge website of a woman licking the face of a cow. The cow is wearing a monocle and a top hat and the accompanying text reads, “Get intimate with our new premium beef”. Despite the complaint suggesting the sexual innuendo was “wrong and perverted” the claim was ultimately dismissed on the basis that the image was not overly sexualised or provocative. 2. Thirsty Camel’s Hump Club (Case Number 0040/13) – The television advertisement shows a man walking through the desert praising the benefits of Thirsty Camel’s Hump Club loyalty program. The advertisement ends with the phrase “get humping

today”. The complaint made was that ‘get humping today’ could be viewed as a double entendre for intercourse. Ultimately the complaint was dismissed since the phrase was used in the proper context of camels. 3. Lipton Ice Tea Virgin Pina Colada Advertisement (Case Number 0050/13) – Some bottles depicted an image of a young woman riding a bicycle next to the words “Enjoy Irresponsibly”. One of the complaints made was that the advertisement “exploits and sexualises young females (new virgins).” The complaint was dismissed since the advertisement did not sexualise young females, the word “virgin” is commonly used to refer to “virgin cocktails” and because the words “Enjoy Irresponsibly” could be read as a satirical take on the alcohol industry’s message “drink responsibly”. Television shows like Mad Men and The Gruen Transfer tend to focus either on the production of advertisements or on the advertisements themselves. But much like Don Draper after a big night out, advertisements often create an aftermath in the form of complaints. So whether it is user comments on Facebook, a message to start humping today or an encouragement to drink irresponsibly, you can bet someone will make a complaint and that complaint will be determined by the Advertisement Standards Bureau. Ultimately then it appears that advertising is just as much about complaints and the complaint process as it is about the actual advertisements.

The Brief | Volume 19, Edition 2

Back to the Future: Recognising Local Governments in our Constitution

TOM CRAVEN, explores the proposed referendum question on recognising local governments in our constitution, and its possible implications for the process of government.

n September the 14th, Australians will face two important questions, the first will be a verdict on the Gillard government. Australians will have a choice between returning the Labor Party for a third successive term or handing the keys of The Lodge back to the Liberal Party and its charismatic leader Tony Abbott. The second question that Australians will have to answer is just as important but has largely been overlooked by the media and political commentators in favour of the pomp of Canberra politics. This second question will be a constitutional referendum on whether local government should be recognised in the federal constitution.

The Brief | Volume 19, Edition 2

The issue of recognition for local governments in the constitution is not a new one. This will be the third time since 1977 that Australians have faced this question at a referendum, the same question failing on its previous two attempts. In all three attempts, it has been a Labor government that has proposed the change, although this time most of the Liberal Party appears to support the change. This indicates that even though the ordinary Australian might not care about the recognition of local government, politicians in Canberra obviously do. The Federal government has longed for the recognition of local governments for practical reasons. Canberra wants to be able to fund local government directly without the

states who have legal responsibility under this own state constitutions for local government. Up until recently this was not an issue, despite the ‘no’ vote from the Australian people in the 1977 and the 1988 referendums, the Federal government was still finding ways to fund local government. This ran contrary to the High Court’s understanding of Section 96 of the Constitution which provides that: “The [Federal] Parliament may grant financial assistance to any State on such terms and conditions as the Parliament thinks fit”. It would appear at first glance then that the constitution would only allow funding to local government if it went through the state’s first. That is the Federal government could give money to states to give to local government, but could not give directly to local government. This understanding reflects the Federal character of our constitution, that we have levels of governments with differing

[The Essay]

responsibilities. The interpretation of Section 96 was reaffirmed twice in recent years. The first time in 2009 in Pape v Commissioner of Taxation, where a lecturer challenged the constitutional validity of Kevin Rudd’s taxpayer handouts of $900. One of Pape’s argument was that Section 96 did not allow for a Federal government injection of stimulus in the form of $900 payouts directly to taxpayers as the money should have gone to the states first who could have passed it on to their residents. In 2012 in Williams v Commonwealth(School Chaplains Case) the Federal government’s ability to fund government activities inside states was again called into question. In both these cases, the Federal government has argued that the Commonwealth was relying on its executive power contained under s.51 and not under s.96. In both cases the High Court disagreed. It appears that the current High Court does not

“It appears that the current High Court does not believe the Commonwealth’s action, in funding local activities directly were sufficiently connected to a valid constitutional head of power.” believe the Commonwealth’s action in funding local activities directly was directly and sufficiently connected to a valid constitutional head of power. The Court declared that s.96 is relevant and it has a limiting effect on Federal government power. This means for practical purposes that the Federal government must go through the states to fund activities that are not sufficiently connected to its own head of power. The reason for the referendum should now be more obvious. It is not because as it supporters have suggested to

recognise the tremendous work that local governments do in Australia. That is already self-apparent. The referendum is about is changing the precarious federal nature of our constitution in favour of more centralisation. It is a feature of our constitution that there is a central government as well state governments. The central government runs things of a national character, that is defence, foreign relations, customs and excise and postal services. The state governments are supposed to run the things that The Brief | Volume 19, Edition 2

[The Essay]

“The reason for the referendum should now be more obvious. It is not because as it supporters have suggested to recognise the tremendous work that local governments do in Australia.” are close to the people, like health, education, transport, justice and the environment. The separation between Federal and State responsibilities has become blurred since Federation and it has become hard to recognise the distinct responsibilities. The High Court’s often changing opinions have made this task even more difficult. Recognising local governments in the constitution will have the practical effect of changing the operation of

s.96 allowing the Federal government to fund local governments directly. It will give the Federal government a sufficient head of power to fund local governments and thus local activities such as the school chaplaincy program and other future programs. It will allow the Federal government to disregard the states and their constitutional role by dealing only with local governments. In other words this referendum will have the effect of centralising Australia even

more, dragging power away from the decentralised states and giving it to Canberra, all under the guise of empowering local councils. The ‘yes’ case for this referendum has barely been explained, Australians are just expected to vote ‘yes’ on September 14 as how could anyone vote against recognising our local governments? We should however all be aware that this referendum is a question that goes to the heart of the future of this nation’s governance. Do we choose to hand more power to Canberra, taking even more responsibility away from the states? Or in other words do we choose to hand over decisions that are made locally about the funding of local governments by state parliaments to people who are thousands of kilometres away in Canberra and have probably never set foot in the council in question? At least think about your vote, it may have long term repercussions.

SEE

THE BIGGER PICTURE

CURIOSITY TO SEE WHAT OTHERS CAN'T

A NEW PERSPECTIVE Being an exceptional lawyer takes the curiosity to see what others can’t; the ability to cut to the heart of a matter; and the character to push further than others. This is how we bring original perspectives to our clients’ most complex and critical matters. Bring these qualities and we’ll expose you to inspiring people working together towards a new and distinctive vision. We’ll reward your contribution with the responsibilities, challenges and opportunities you’d expect from a leading global law firm. We see a fascinating and exciting future for the business of global law. Do you? HERBERTSMITHFREEHILLS.COM/CAREERS

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Write for The Brief and get published! Submissions are now being accepted for Edition 3 2013. For more information, contact Tom at thebrief@muls.org. The Brief | Volume 19, Edition 2

SOS 1 2013 - The Ivy Bar

The Brief | Volume 19, Edition 2

[Regulars]

You know you’re a law student when… with Rana Al-Shibly

You get told that you love to prove people wrong. One day you think you’re Marshall Eriksen, the next you realise you’re practically Ted Mosby! And don’t even get to thinking that you’re Chandler Bing, because, let’s face it, you’re actually Ross Geller. Oh, the horror! It’s not your fault though. You have spent the last few years (or will spend the next few years) learning to do just that. Not to mention the fact that you are likely to spend the rest of your working life surrounded by other people just like this. But still, maybe it wouldn’t hurt to let the argument slide on Friday nights over drinks.

You get excited at the sight of a Boots chemist, laugh at one of the countless snail-in-gingerbeer jokes, or have a fan girl/boy moment over High Court judges rather than celebrities. At least you know you got something out of reading a 200-page case. But is that worth the weird looks you get from your non-law student friends? Of course it is… of course it is.

You complain about how small a word limit is, rather than how difficult it is to reach. 1500 words, inclusive of footnotes? Not possible! Three pages, double-spaced? You’ve got to be kidding me! Then again, considering the fact that many law students of today will end up one day writing judicial decisions, it’s no wonder our lecturers want us to be as concise as possible. They don’t want to be stuck reading yet another 200-page case! Can you blame them, really?

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