The Obiter Issue 18 by The Obiter Magazine

THE OBITER

ISSUE 18 COVER

USALSA is proud to support marriage equality. USALSA believes that all Australianâ&#x20AC;&#x2122;s should have the right to marry the person they love regardless of gender and to receive equality under the law.

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CONTENTS.... USALSA

FEATURE

5 LETTER FROM

20 INTERVIEW -

THE EDITOR

MARIE SHAW QC

6 USALSA NEWS

OBITER DICTUM

8 FAREWELL, MR 24 ALSA 2017 PRESIDENT

26 LEADERSHIP

RATIO

10 YOUTUBE

SYMPOSIUM

STARS WIN CASE

GAME

12 MEDIA SHIELD 29 LAW

ANAGRAMS

LAWS

14 REBEL WILSON 30 ANSWERS DEFAMATION

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MEET THE TEAM Jessica Punch Editor in Chief

Eden Panozzo Publications & IT Director

Alexander Hamam Publications & IT Officer

Carly-Rae Austin Editor

Philippa Jones Editor

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LETTER FROM THE EDITOR This has been a difficult Obiter to put together. The loss of our Publications portfolio meant that someone had to produce the final Obiter for the USALSA term. I stepped up to the role due to my love of digital design and attempted to modernise the Obiter through overhauling the layout and structure of the magazine. The Obiter has also gone completely digital in an attempt to be eco-friendly, save money and step into the digital era. However, any contributors to an edition are able to receive a print copy at request.

Iâ&#x20AC;&#x2122;d like to wish the incoming Publications & IT team - Eden Panozzo (Publications & IT Director) and Alexander Hamam (Publications & IT Officer) - the best of luck with all of their future publications. I trust they will do the best job yet. Enjoy the anagrams! Jessica Punch Editor in Chief

This edition we are lucky enough to have had Marie Shaw QC, one of SAâ&#x20AC;&#x2122;s most distinguished barristers, sit down for a coffee and interview. Marie speaks about her career, the legal profession and her Ice Factor program. We have had quite a few students flying interstate and abroad this trimester with seven students attending the ALSA Conference 2017 in Canberra and five students attending the Eigth University Scholars Leadership Symposium at the United Nations in Bangkok, Thailand. You will find short articles from students who attended ALSA and the USLS towards the end. We also say good-bye to an old committee and welcome a new one with immediate past USALSA President, Seamus Brand, giving his farewell in his final Obiter piece.

USALSA USALSA

USALSA NEWS Itâ&#x20AC;&#x2122;s been a busy trimester...

ALSA 2017

Health & Well-being Week

In July, the USALSA and the law school sent seven delegates to Canberra to compete in the 2017 National ALSA Competitions. Our students competed in the Open Moot, Client Interview, Negotiation and Witness Examination. Good work students!

This trimester we held our second annual heal th and well-being week. The Social Justice team put together an inspiring week with baked goods, raff les, therapy pups and talks from Beyond Blue, UniSA Counselling and Marie Shaw QC.

Elections & AGM

We held our 2017 elections and handed over our portfolios to a fresh committee eager to get started on a long term. One of the key changes made at the AGM was to change our election period to November to allow a term to go over a full year.

Our most successful initiative was our Facebook posts of practitioners and legal professionals in the legal industry. Over 10 days we shared pos ts from legal professionals about the impor tance of mental health in the legal industry through sharing their stories and strategies.

We also introduced two new committee positions - Membership & Administration Officer and First Year Representative. This was especially exciting as we finally have a position for someone to respond to the wants and concerns of first year law students. Congratulations to our new committee - we wish you all the best for your 18 month term.

Quiz Night Quiz of Thrones was our annual quiz night theme this trimester. Going back to The Hackney for the venue, we had a fun night full of tough questions (par ticularly science). Congratulations Team 7 -Tracey owes you a well-earned jug. 6

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NEW COMMITTEE 2017/2018 President - Jessica Punch Treasurer - Salsabil Hafiz Secretary - Emma Martin Competitions Director - Hannah Thomas

Publications & IT Director - Eden Panozzo Social Justice Director - Lauren Green Careers Director - Courtney Dolphin Actvities Director - Jasmin Robbins Competitions Officer - Georgina Axford Publications & IT Officer - Alexander Hamam Marketing & Publications Officer - Zayn Richter Careers Officer - Natalia Reveruzzi Events Officer - Nour Hana 7

USALSA

FAREWELL FROM THE PRESIDENT Seamus Brand, USALSA Immediate Past President As I look back on my life, certain aspects stand out above the rest. Things that inspired you, challenged you, changed you. They’re not always positive but they’re not always negative either, but they are always experiences that should be valued for the lessons you learned. It is never good to dwell on the past for too long, but by the same token those who do not learn from history are doomed to repeat it.

committee, I thank you whole heartedly. Because this is what my last article is, a thank you. It is a thank you to the 2015/16 Committee who first accepted me as Events Officer and helped me learn how USALSA works. A thank you to Sunny Luthra and Leanne Steele who encouraged me to run for President. A thank you to Jessica Punch who stood by my side come hell or highwater and helped me lead the 2016/17 Committee through tumultuous days. A thank you to the members of that committee for all you did, especially those of you who stuck it out and stayed till the end. A thank you to every practitioner, academic, and any person who volunteered their time to assist us try and be the best student committee we could. A thank you to the 2017/18 Committee for putting your hands up and being willing to take over from us and build on what we did. I learned a lot from USALSA and although it was hard work, I gained many benefits from it.

The last two years on USALSA is one such experience that stands out when I look back. It was an inspiring, challenging, changing, positive, negative experience. Some times I loved it, some times I hated it but I don’t regret a moment of it. This is my third Obiter article discussing USALSA but it will be the first where I am not begging students to attend an event or to run for a position. I still very much want these things to happen, but it is no longer my place to do so. Not only is it no longer my place but I have said time and again that involvement with your student association will benefit your student experience and your career in the long run. To those members who came to events and participated in USALSA over my last two years on the

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Ratio

RATIO

YOUTUBE STARS WIN COURT CASE:

ESTABLISH IMPORTANT COPYRIGHT PRECEDENT LEO COLDBECK-SHACKLEY YouTube stars, Ethan and Hila Klein (the Kleins), have won recently an important copyright case against another YouTuber, Matthew Hosseinzadeh (Mr Hoss). The decision is important for the YouTube community as it provides guidance of what does and does not constitute ‘fair use’ of copyrighted material regarding the ‘reaction video’ genre on YouTube. Under copyright law of the United States of America, ‘fair use’ is a defence to copyright infringement. To the best of my knowledge, this is the first decision to deal directly with an infringement claim for use of copyrighted work in a reaction video.

or minimal reactions throughout. On the other side of the spectrum, a video will play relatively little of the original video, which is spliced by original commentary from the reactor. Background The plaintiff, Mr Hoss, is a popular YouTuber. He posts scripted video skits on his channel ‘MattHossZone’. He has published a series of skits where he plays a character ‘Bold Guy’. Mr Hoss describes the series as: A comedy series about a confident and funny man who picks up women, beds them, and gets into all sorts of crazy trouble. Starring Matt Hosseinzadeh and various guests.

A ‘reaction video’ is a popular style of video on YouTube. A reaction video is just that, it is a video of someone showing his or her reactions to something else. YouTubers will often use this form to comment on, joke about, or deride, videos made by another YouTuber. A reaction video will typically use footage from the original video. The extent of that use varies greatly within the genre. Some videos are more akin to ‘group viewing sessions’, where the reactor plays the original video uninterrupted and in full (or almost in full) and provides a reaction at the end

Mr Hoss’s most popular video by views is ‘Bold Guy vs Parkour Girl’ (the Hoss video). The Hoss video depicts a flirtatious encounter between Mr Hoss and a woman which is broken up by parkour stunts. The defendants, the Kleins, are also popular YouTubers who post comedy videos on their channel ‘H3H3 Productions’. In February 2016, the Kleins uploaded a video called ‘The Big The BOLD, The Beautiful’ (the Klein

THE OBITER video). The Klein video shows segments of the Hoss video spliced with original commentary, criticism, parody, jokes and reactions by the Kleins.

was protected by fair use. There are four, non-exhaustive, elements of the fair use defence: 1.The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; 2. The nature of the copyrighted work; 3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4. The effect of the use upon the potential market for or value of the copyrighted work.

Three days after the Kleins posted their video, Mr Hoss issued YouTube with a takedown notice. The notice alleged that the Kleins had infringed copyright owned by Mr Hoss by using segments of his video without his permission. When YouTube receives a takedown notice, it is required to remove the subject video pending the copyright dispute being resolved. YouTube, accordingly, took down the Klein video. The Kleins then issued a counter takedown notice to YouTube arguing that their use of Mr Hoss’s copyright was protected by fair use.

The ‘heart’ of the defence is the first element. It is concerned with whether the subsequent use of copyrighted work is ‘transformative’ in the sense that it creates something new, for a different purpose, or character. Criticism and commentary is a well-established justification for copying another’s work. Her Honour considered that the Klein video was ‘quintessential criticism and comment’. The first factor accordingly weighed in favour of the Klein video being protected by fair use. Her Honour made specific reference to a number of examples in the Klein video, including:

“ T he ‘ hear t ’ of the defence is the first element. It is concer ned with whether the subsequent use of copyrighted w o r k i s ‘ t r a n s f o r m a t i v e ’ ’” In response to the counter notice, Mr Hoss filed proceedings in the District Court of New York. He alleged, amongst other things, that the Kleins had infringed his copyright. Had Mr Hoss not filed proceedings, YouTube would have restored the Klein video. Both parties made application for summary judgment, and the matter proceeded to a hearing before Forrest J.

•Ethan Klein mocks the video’s opening title sequence and mimics the movement of the words by performing a dance in his seat; •After watching what they [the defendants] apparently consider a lewd and unrealistic opening sequence, defendants point out that plaintiff wrote the script, and Ethan Klein remarks “this is how Matt Hoss sees the world and it says more about him than it does about anyone else.”;

The decision On 23 August 2017, Forrest J handed down her decision to summarily dismiss Mr Hoss’s claim and held that the use of

Ratio •Defendants mock plaintiff’s parkour ability, sarcastically stating that plaintiff “thinks he’s . . . a parkour expert.”

factor was therefore neutral. The fourth factor looks at whether the copying ‘usurps’ demand for the original work; in that it provides a market substitute and detracts from its intended market. It is not concerned with mere damage to the primary work’s market. A critical review might destroy the market for a book or movie and still not produce the relevant harm. Her Honour considered that the Klein video clearly was not usurping the market for the Hoss video. Viewers of the Hoss video would have a very different experience to viewers of the Klein video; the Hoss video is a comedic skit while the Klein video uses it for ‘caustic, moment-by-moment commentary and mockery’. The fourth factor weighed in favour of finding of fair use.

•Ethan Klein criticizes a scene in which Bold Guy rapidly moves from one location to another, stating that the scene “broke [the] realism” of the video. The second factor recognises that works that are ‘artistic creations’, as opposed to factual works (like a news broad cast), are closer to the core of the types of works intended to be protected by the fair use defence. Because the Hoss video was fictional, it was clearly a ‘creative work’. This weighed against a finding of fair use. The third factor looks at the quality and quantity of the copyrighted work that has been used in the allegedly infringing work when compared against the copyrighted work as a whole. The permissible extent of copying under the defence will vary depending on the purpose and character of the use. The Klein video used about 60 per cent of the Hoss video, a total of three minutes and 15 seconds out of its total length of five minutes and 24 seconds. The Klein video therefore used a great deal of the Hoss video. Parody, critical comment, and review requires reference to the original work for context and utility. Copying therefore does not necessarily become excessive for parodic purposes merely because it uses a lot of the original work. The Klein video is effectively a scene by scene comedic analysis of the Hoss video. Her Honour considered that the extent of the copying was reasonably necessary to produce the transformative purpose of critical commentary. This

Her Honour considered that the Kleins’ use of the Hoss video constituted fair use as a matter of law, and accordingly dismissed Mr Hoss’s infringement claim. Conclusion Mr Klein said in a subsequent video celebrating the win that: ‘This is a landmark case, not just for use, but the wording the judge put in is going to strengthen fair use across YouTube.’ The case provides valuable guidance for what constitutes fair use of copyrighted material in a reaction video. Her Honour noted specifically the reaction video genre varies widely in terms of purpose, structure, and extent to which copyrighted material is used. The decision is accordingly not a ruling on whether the reaction video genre as a whole constitutes fair use of copyrighted material. The decision confirms that the purpose

THE OBITER for which that use is often the decisive consideration in two ways. First, so long as the purpose of the copying can be described fairly as commentary, criticism, or parody, the permissible extent of copying seems to include copying of the ‘heart’ of the original work. The Klein video used about 60 per cent of the Hoss video; if you watch the Klein video you have effectively watched the Hoss video too. Second, the purpose of the copying is also relevant to whether the allegedly infringing work acts as a ‘market substitute’ for the original work. Criticism and commentary on copyrighted work clearly does not usurp the market for the original work in the relevant sense.

References Hosseinzadeh v Klein (District Court, S.D, New York, 1:16-cv-03081, 23 August 2017) <https://www. courtlistener.com/docket/4356997/ hosseinzadeh-v-klein/?page=2>. Link to the Kleins’ video announcing their court victory: <https://www. youtube.com/watch?v=9eN0CIyF2ok> Link to the Hoss video: <https://www. youtube.com/watch?v=Dj4XAYhF0ok> Link to the Klein video: <https://www. youtube.com/watch?v=CXUs5FOo-JE>

Finally, the proceedings are also notable because the Kleins’ legal defence was crowd funded. Another popular YouTuber, Philip De Franco, started a Go Fund Me page to support the Kleins’ legal defence. The page raised over $130,000 in donations and apparently paid for all of the Kleins’ legal bills.

Ratio

REBEL WITH A CAUSE OF ACTION HANNAH THOMAS

Rebel Wilson, known famously for her roles in Pitch Perfect, has recently been in the spotlight of the Australian courts. Wilson sued Bauer Media in the Victorian Supreme Court for defamation. 1 The basis for the suit was eight articles published in 2015 in several different magazines. 2 These articles involved different statements alleging Wilson had lied about her age, upbringing, real name and other aspects of her life. These articles were published after the release of the first Pitch Perfect movie in 2015. The case was finalised in June 2017, in favour of Wilson.

There were many issues raised at trial. The articles alleged Wilson lied about her name, age and upbringing, and that she was related to Walt Disney. Wilson alleged these articles were stopping her from getting future roles. The name on Wilson’s birth certificate is Melanie Elizabeth Bownds, and she was born on 2 March 1980.5 Her mother used to call her Rebel often, and in 2002, Wilson changed her name to Rebel.6

“she needed to stand up for herself to stop publishers from thinking they could get away publishing anything”

Wilson’s reason for suing Bauer Media was feeling she needed to stand up for herself to stop publishers from thinking they could get away publishing anything.3 Wilson said she did not care about the money she received; she cared about her reputation and what the magazines would be able to publish in the future.4

During the trial, the defendants wanted to admit expert evidence from a genealogist, Carole Riley about the statement that Wilson is related to Walt Disney.7 Ms Riley believed there was no familial relationship.8 The statement about being related to Walt Disney occurred in an online Women’s Weekly article, from an interview between Wilson and Caroline Overington. 9 In evidence, Wilson explained to the court that her nanna told her that her nanna’s aunt was married to Walt Disney, and they were distantly related. 10 The court did not grant leave to rely on the

THE OBITER evidence from Ms Riley, that there was no familial relationship, the main reason being the defendants did not properly comply with the procedures under the Civil Procedure Act.11

b e l i e ve t h e r e w o u l d b e e n o u g h time to organise the appropriate documentation, and properly cross e x a m i n e M s J a c k s o n . 15 T h e c o u r t disagreed with this and said there was no reason for Ms Jackson not to appear via video link. 16 Wilson’s solicitors wa n t e d t o a d m i t M r P r i n c i p a t o through evidence to assist in showing the magazine articles in question resulted in the decrease of acting work for Wilson. 17 The defendants tried to say this evidence was inadmissible. However, the court ruled it was admissible.18 Mr Principato said Wilson would have received several offers after Pitch Perfect 2, amounting to 5-6 million dollars per film.19 Mr Principato believed the timing of the articles released, resulted in the decrease of roles for Wilson.20

“The articles alleged Wilson lied about her name, age and upbringing, and that she was related to Walt Disney.” Wilson’s solicitors made an application for Ms Jackson, Wilson’s agent, to appear via video link to give evidence. 12 Wilson stated the evidence to be given by Ms Jackson was that after the release of Pitch Perfect 2, around the time of the articles being released, 13 Ms Jackson put Wilson up for other major roles, but Wilson was not offered any. As Ms Jackson resides and works in the United States of America, she was unable to appear in Melbourne.14 The defendants opposed this application as they did not

This case was a victory for Wilson, and it was important for her to stand up for herself. It will be interesting to see in the future how this affects other media organisations, specifically how they can report on celebrities in their respective magazines. 6. Ibid. 7. Wilson v Bauer Media [2017] VSC 302 [1].

1. Wilson v Bauer Media [2017] VSC 302 [1]. 2. Ibid. 3. Emma Younger, Rebel Wilson wins defamation case against ‘bully’ magazine publisher Bauer Media (16 June 2017) ABC News <http://www.abc.net.au/news/201706-15/rebel-wilson-wins-defamation-caseagainst-bauer-media/8609670>. 4. Ibid. 5. Simone Fox Koob, Rebel Wilson wins defamation suit against Bauer Media (16 June 2017) The Australian < http://www. theaustralian.com.au/news/inquirer/rebelwilsonwins-defamation-suit-against-bauermedia/news-story/a395c24cd877e3fc651178d c94d75f58>.

8. Ibid. 9. Ibid [2]. 10. Ibid [8]. 11. Ibid [23], [35]. 12. Ibid [1]. 13. Ibid [7]. 14. Ibid [4]-[5]. 15. Ibid [10]. 16. Ibid [20]-[25]. 17. Ibid [4]. 18. Ibid. 19. Ibid. 20. Ibid.

Ratio

MEDIA SHIELD LAWS ALEXANDER HAMAM Journalists must battle with restrictions on speech when reporting on particular matters. However, journalists must also contend with another constraint, being the disclosure of a confidential source in court proceedings. This requirement of journalists has the ability to affect their credibility, with confidential sources potentially being reluctant to come forward with information, with the risk of their identity being exposed. This places journalists in a very difficult situation, as they are also bound by a code of journalistic ethics.1 The Media, Entertainment and Arts Alliance, are responsible for maintaining the code of ethics, and also investigate any complaints made against journalists who contravene the code.2 Clause 3 specifically deals with confidential sources, stating:

very common, with shield laws in place throughout 49 states to date.5 These laws are significantly old however, with the first being introduced in 1896. 6 Many academics, and judges have said that the laws are outdated, and that they ‘do not

“speech cloaked in anonymity, is essential to the democratic process, as a means of voicing unpopular views that otherwise might remain silent” adequately address the realities of contemporary journalism, let alone online-only newsgathering’.7 Although these laws are considered outdated, the US Supreme Court allows the protection of confidential sources, ‘so long as it does not shield fraudulent conduct’. 8 This verdict was reached after it was discussed, that ‘speech cloaked in anonymity, is essential to the democratic process, as a means of voicing unpopular views that otherwise might remain silent’.9 In Australia, shield laws have been introduced in some states, however they still remain rare.

Aim to attribute information to its source. Where a source seeks anonymity, do not agree without first considering the source’s motives and any alternative attributable source. Where confidences are accepted, respect them in all circumstances.3 Shield Laws in Other Western Countries Journalistic ethics have been around since the media’s inception, with journalists fighting for the courts to respect their code of ethics for decades.4 In America, shield laws for journalists are

Shield Laws in Australia Unlike lawyers, doctors and priests, journalists in Australia are not covered by such a ‘privilege’, that allows them

THE OBITER their existence, their scope, and their reliability in a new age of surveillance’.21 The strong recommendations from academics, Joseph Fernandez and Mark Pearson, is the implementation of training for journalists in shield laws, levels of confidentiality, and source and data security, stating that ‘the liberty of both journalists and whistleblowers depends upon it’.22

to keep information confidential even if requested by a court. In some states such as the ACT,10 WA,11 NSW,12 and Vic,13 shield laws do exist. uring the Gillard Government, following AttorneyGeneral Robert McClelland at the time, passing legislation at a Federal level to protect journalists.14 Following the subsequent Bill, Mr McClelland pushed all states and territories to adopt similar legislation, with the before mentioned states following suit. However, these statutes still allow judges a degree of discretion, as seen in Liu v The Age Company Pty Ltd,15 where the sitting justice held, that a confidential source would not be affected and ordered a release of documents that contained their identity.16

Reform? Shield laws should be adopted in all jurisdictions to further protect journalist and their credibility. These shield laws however, need to be carefully considered, and increased, to give journalists far greater protection than what is currently offered. Judicial discretion could be considered too relaxed, therefore a dedicated board of experts, comprised from both the fields of law and journalism, should be established, in order to ensure the best outcome in each individual case. Further inquiry could also be conducted into only revealing sources at criminal trials, and not civil proceedings.

Therefore, although there is legislation is place in these four states, the identity of a confidential source still has the possibility of being revealed. Although there is that slight degree of protection, states such as South Australia lack any protective legislation for journalists. This leaves journalists vulnerable, with no protective measures in court. In South Australia, a similar Bill to other states was proposed, which would see journalists able to protect their confidential sources, so long as the public’s interest is not greater than that of the source.17

Conclusion Although shield laws are present in some Australian jurisdictions, and it is possible for them to be adopted nationwide, shield laws are not effectively an ‘air tight’ protection for journalists. As academics and facts have established, states with shield laws still have provisions that require journalists to reveal sources, going against their code of ethics and basic moral integrity. Furthermore, it has been learned that journalist are uneducated in shield laws, as well as an array of protective measures are able to adopt, to further they protect the identity of their sources.

Although journalists have been calling for more than two decades for some form of protection against the courts power to compel sources,18 research suggests that many Australian journalists are unaware of what shield laws are, how they are protected, or even if they are protected.19 This lack of knowledge might make the push for shield laws in all jurisdiction a ‘waste’,20 especially ‘if journalists do not learn more about

1. See MEAA Journalist Code of Ethics 1944. 2. Ibid. 3. Ibid cl 3.

Ratio 4. Jeffrey G Purvis, ‘Newsperson Shield Laws and The New Media’ (2010) 43(4) Law Technology 19-25. 5. Joseph Fernandez and Mark Pearson, ‘Shield Laws in Australia: Legal and ethical implications for journalists and their confidential sources’ (2015) 21(1) Political Journalism 63. 6. Ibid. 7. Jason Martin and Anthony Fargo, ‘Rebooting Shield Laws: Updating Journalist’s Privilege to Reflect the Realities Of Digital Newsgathering’ (2013) 24(1) University of Florida Journal of Law and Public Policy 48. 8. Jason Martin et al, ‘Anonymous Speakers and Confidential Sources: Using Shield Laws When They Overlap Online’ (2011) 16(1) Communication Law and Policy 91.

9. Ibid 91-92. 10. See Evidence Act 2011 (ACT) s 126K. 11. See Evidence Act 1906 (WA) s 20I. 12. See Evidence Act 1995 (NSW) s 126K. 13. See Evidence Act 2008 (Vic) ss 126J-126K 14. See Evidence Amendment (Journalists’ Privilege) Act 2011 (Cth). 15. Liu v The Age Company Pty Ltd (2016) 92 NSWLR 679. 16. Ibid. 17. South Australia, Hansard, Legislative Council, 14 October 2015, 1609 (Andrew McLachlan). 18. Joseph Fernandez and Mark Pearson, above n 33, 61-62.19. Ibid 66-71. 20. Ibid 75. 21. Ibid. 22. Ibid.

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FEATURE

INTERVIEW: MARIE SHAW QC WITH JESSICA PUNCH Marie Shaw QC, appointed silk in 1996, is one of South Australia’s most distinguished legal minds. Best known for her criminal defence work, Marie is passionate about human rights, justice and representing individuals that may not have access to legal representation. She is known for her charitable work, having established the Ice Factor program helping ‘at-risk’ school children get back on track through ice hockey, support and skill-building lessons. UniSA Law School was lucky enough to have Marie attend the university to give an inspiring talk on mental health for our annual Health and Well-being Week. Marie kindly sat down for a coffee and what felt like a friendly catch-up rather than an interview. Why did you pursue a career in the law? ‘It was not something that I planned. When I was in high school I was involved in debating… it’s always assumed that if you do debating you’re more likely to do law. The main reason was that I knew I could never do any of the science subjects… I was no good at maths and science so that left law, social work and physical education (because I love sport) for me.’

called at that time ‘the establishment’ . I admired his courage in court, even if he was lambasted or put down because of who he was acting for. It’s often said that those who are in the most troubled or the most reviled in our community are the ones who need the best representation and he was truly loyal to that principle.’ Where did you start out? ‘I got the job with him because my husband happened to be a police prosecutor. He was working with a sergeant who was a member of the West Torrens Football Club, Frank Moran was a leading figure in that football club – the sergeant told the man about a constable dating a law student and set it up that if I ever wanted a job, Mr Moran would give me articles.

Once studying, did you always know you wanted to be a barrister? ‘No I had no self-confidence to think that I could stand up in court and present an argument to the magistrate. I happened to get my articles with the very prominent and outstanding Frank Moran QC, who was one of the leaders of the Criminal Bar. I just adored the way he was so committed to the underdog and how he was willing to stand up to, what was

How was the dynamic between you and your husband being a criminal defence lawyer and a police prosecutor? When I met my husband I was actually

THE OBITER a Woollies Checkout Chick. He was a police constable and I had no idea I was going to go into the law, so at the time we met I wasn’t a law student. After I did law and then got admitted he was a constable on the road so that was a good source of intelligence for me to know how policemen think and what to look for when I’m cross-examining and to know their procedures. He was very helpful in instructing me about what really goes on in terms of the police arresting someone, their obligations and generally where you might find they make mistakes or fall down or are under resourced, under-trained and where they often take shortcuts.’

by a judge, if they are being wrongly dealt with by the prosecution, they know they can ring for advice and don’t feel as though they have to make a mistake because they can’t find the correct answer.’ You’ve done a lot of high profile cases, how do you cope with the media that surround them? ‘There are cases where the public notoriety publicly condemns somebody and we get to trial and as events emerge, it has certainly happened to me more than once, that the person is innocent. So we have to be really careful that public perception doesn’t govern what is said to be a just result because unfortunately what gets to the media and what is published is inevitably the prosecution case right from the start. The groundswell of antipathy towards the individual is very hard to overcome; by the time you get to trial there is [a public] expectation of: ‘we’ve got our man’,‘if we lock up this man – we’ll be safer’, when in reality you might have the wrong person or the person is not someone who should be forever forsaken in the community. He might have his own family, his own children and as I often say, ‘there by the grace of God go I, there by the grace of God go my children’ and everyone that I act for I take the view that if it was my son or my husband or my family member then I would expect counsel to represent them as fiercely and independently as I would representing any other person.

What was it like to be appointed silk? ‘That was perhaps the appointment and honour that I value the most because at that time it was an appointment on recommendation of the Supreme Court Justices and it had to go to the executive council and I would receive letters patent from the Queen for my appointment. I know that the judgment of the Justices on the Court of Appeal is one that is directed solely how they view not just your advocacy but also your commitment to being an officer of the court. I regarded the other senior counsel at that time as leading lights in the profession who had guided me and I was extremely proud to join their ranks as senior counsel. You then take on the responsibility of that role in the legal profession whereby you encourage young people to know if they are ever in strife they can ring you, if ever they need representation, I’m certainly a senior counsel that makes themselves available at any time. If they are in a sticky spot in court, being badly treated

There’s no single way to deal with the media surrounding a case. From trying to not apprise yourself of it as far as possible and hope that the judge’s directions will

Feature ensure a jury is not affected by it. I think that’s very difficult, but there have been certain cases that have become intrusive in some respects but, you’re a professional, you’ve got a job to do. I don’t see the media publicity as something that should interfere in the way I represent someone, it’s quite the opposite.’ What would you consider the highlight of your career? Apart from your appointment as silk. ‘Probably seeing my eldest daughter set up practice and deciding to commit to supporting those who are least able to obtain representation and to decide that the way she wants to practice was to make herself and her partner in practice available for everybody. That’s how I started, and with such pressures of business, such pressures of court and the very limited amount of money you get on legal aid – to decide you’re going to practice because you believe you’re offering a service to the community, I couldn’t be prouder.’ What do you do in your spare time? ‘I spend most of my time working out how I’m going to help more young people in Ice Factor and plans for them. We’ve just held a reception at Government house where we got the young people down there from our different schools. They would never had had the opportunity to go into a place where they are waited on with pizza and brownies. We arranged for two of boys, one who was an ex-Ice Factor from 10 years ago, who had never worn a suit to go to Peter Shearer Menswear where he was fitted out with a suit. The other boy was from his old school and was also fitted out with a suit. I love to see young people realise that these experiences and

experiences and these opportunities in life are there for them as well and they should not allow themselves to be held back because there are put downs, or the school doesn’t have an expectation of them, or their family doesn’t have an expectation of them. I am committed to making sure young people believe in taking responsibility for their lives. They can all be contributors and have a fulfilling life despite the circumstances from which they come..’ What would consider a success story in Ice Factor? ‘Success can be expressed in many different ways. For me, success is if a child who is self-harming and has been trying to commit suicide for a very long time, decides she isn’t going to self-harm any more. I’ve seen that happen and I’m very proud of her. We had another girl from a high school who is now at Macquarie University – in year 9 she was extremely disruptive and disrespectful of teachers and now has come back to act as a mentor and example to our young people. We have a girl who is on a four year ice hockey scholarship to the United States. She came from a family of nine children and their circumstances could not ever have allowed her to go down a path where she could have been the best at ice hockey. We had four young people last year who all entered university – that’s not the be all and end all. We also have young people who have gone into their own businesses. One young man was a property developer by the time he was 19 and has started a

THE OBITER new business in Adelaide. One girl is now an international fashion designer. She was getting in fights and was expelled from school in year 9 but was encouraged to pursue her dreams and believe that if you have a passion about something then the only person stopping you achieving your dreams is yourself. That’s why I believe I see success typically within a year in our program, we see extraordinary changes in the children’s outlook themselves.’ What piece of advice would you give to a law student? ‘To understand that the legal profession is a crucial part of our democracy, that an independent legal profession stands between government and the police. Our ancestors fought two world wars to allow us to be in a position to protect the rights of individuals against the might of the State and that separation of powers depends on a strong legal profession. That’s the place

of the legal profession, that’s the place of individuals in that profession that they can best contribute to that ultimate goal by being balanced and aware of everyone’s circumstances, not just being focused on their own goals but what they can with their skills, contribute to the broader community. The word balance is a focus in everyone’s life, particularly for those who decide to go down the path of the law. There are many different forks in the road that you can take - what the law offers is the opportunity to go down different paths at the same time and achieve so much by proving that not only you, yourself have value but that you actually make a difference to the lives of others.‘

If you would like to learn more about Marie’s Ice Factor program - go to: www.icefactor.net/ or follow them at: www.facebook.com/IceFactorProgram/

Marie’s Ice Factor Program

Obiter dictum OBITER DICTUM

ALSA CONFERENCE: CANBERRA 2017 JESSICA PUNCH

In July 2017, USALSA and the Law School sent seven delegates to Canberra to compete in the ALSA National Competitions for their annual ALSA Conference. Hannah Thomas, Niki Yeeles, Callum Jubb, Leo ColdbeckShackley, Nick Karalis, Georgie Grosset and myself competed over two days in the preliminary rounds. Niki and Callum competed in the negotiation, Nick and I competed in the client interview, Hannah and Leo competed in the Open Moot and Georgie competed in the Wtiness Examination. Unfortunately none of our teams made it through to semi-finals. However, being able to watch the grand finals was such an experience in itself. I competed in the Client Interview competition. It requires little preparation other than a pre-planned stucture. Client Interview involves a fake client with their own issues and will keep certain facts secret unless you probe your client for specific information. You are judged on your empathy, questioning, teamwork, professionalism and how the client felt with you. The client interview preliminary rounds consisted of a girl unhappy with her music festival experience similar to the Fyre Festival debacle, a

law student who went on a clerkship reality TV show and an international student being underpaid at his part-time job but couldn’t speak up because his boss was his Dad’s friend. The exciting thing about client interview is that you don’t know what kind of client you’ll get. The grand final client happened to be a schizophrenic man who hated lawyers. The Open Moot grand final was held in the High Court. On the bench of judges sat Justice Gummow. It was an amazing experience seeing an ex-high court judge back in their judicial domain. The High Court is a magnificent building. Oddly, however, despite their height, the courtrooms were actually quite small.

“It was an amazing experience seeing an ex-high court judge back in their judicial domain.” Our mooters tackled a difficult problem concerning contracts, equity and trusts. Mooting is a challenging yet rewarding skill that is beneficial not only at university but in practice. The intriguing thing about the ALSA Moot is that you can be given a topic on any area of the law.

THE OBITER The negotiation competiton gives a unique opportunity to try alternative dispute resolution. It involves a team of two who have a set of secret facts face off against another team with their own sets of secret facts based on a problem both parties would like to resolve. Our competitors negotiated hard and faced off against some difficult teams. Witnesss examination allows a student 90 minutes to prepare a case theory for both prosecution and defence in a criminal matter. Unlike the other competitions, it is a solo competition. After competing, many of us had a chance to experience some of Canberraâ&#x20AC;&#x2122;s sights, including the National Art Gallery, the National Portrait Museum and the High Court. We were treated to two dinners; one at Parliament House and a second at the War Memorial. Next year, the ALSA Conference will be held in Adelaide. I would highly encourage competing. The ALSA week is a fantastic experience to network and meet other law students from across the country and to give a go at competing. It was an extreme privilege to represent University of South Australia on a national level.

Obiter dictum

THE EIGHTH UNIVERSITY SCHOLARS LEADERSHIP SYMPOSIUM DANIELLA HOY In August, five UniSA Law students were fortunate enough to attend The Eighth University Scholars Leadership Symposium at the UN in Thailand. We arrived in Bangkok, the city of contrast, to be met by a palatial five star hotel nestled between a neglected slum area and several low-end massage parlours. We met some truly inspiring people, both speakers and attendees. One empowering individual was Rachel Sumekh, founder and CEO of Swipe Out Hunger- a program started while attending college in America, aiming to end hunger on campus through meal credit donation programs. She managed to solve two problems with one solution. She, like many of her friends, bought blocks of meal credits, often to find themselves with leftover credits towards the end of semester. Some students would use up what was left on alcoholic drinks, but most would

go to waste. Simultaneously there was a homelessness problem in the area, and she knew several students who often didn’t have spare money for food after paying other college expenses. Impressively, she believes in the egoless ideal for her program to model a starfish, which can survive without its head. Rachel intends to establish her program thoroughly enough that, should she move on to other projects, Swipe Out Hunger will function in her absence. There are many evils in this world, and our interconnected world means we are often aware of them. However, these evils take on new meaning through stories of personal experience. Geraldine Cox, founder of Sunrise Cambodia - a charity working to support vulnerable children in some of Cambodia’s most poverty stricken provinces - told us of such things. She told of a baby boy whose eyes were removed and sold on the black market; of children sold into begging rings with faces burnt by acid to make Western tourists more sympathetic; and of girls who stopped going to school at the first sign of menstruation because there were no bathroom facilities. She said ‘to look

THE OBITER after a child is the most rewarding gift in the world - but to care for a community, is kindness multiplied’.She told us how her feisty red hair had protected her and the children in her care. Cambodian soldiers had arrived at their home by tank, weilding AK-47’s and demanding they leave. Fortunately, legend has it a red haired witch exists in Cambodia with powers to shrink an adulterous husbands’ penis to the size of a pea. To her great amusement, the children told Geraldine that on meeting her, the soldiers left them alone, fearing for their manhood. In a panel on ‘gender equality’ in the context of empowering all girls and women, we discussed issues affecting the ability of UN member States to achieve this. One delegate from a small Kenyan coastal village stood up with great conviction in her voice, asking delegates for advice. What would we do in the dire situation she currently found herself? She described a horrifying yet all too common tradition. Female genital mutilation (FGM) was still widely practised in her village despite being outlawed by the Kenyan government. She told us how hard she tried to end the out-dated part of her culture - touring schools to educate, and trying to stop the practice within her own family - but to no avail. There was electric energy in the room as she told us she was the first female in her family to graduate University, receiving a standing ovation. Unfortunately this achievement shadowed her biggest challenge, as her elders mocked her for thinking she knew better because she had attended University. They thought she was trying to diminish integral parts of their culture.

Eyes around the room glistened as the Kenyan delegate’s voice broke while sharing her incredible story. As Group Leaders of the ‘Sustainable Cities and Communities’ service activity, we were responsible for the administration of 200 delegates. We drove from Bangkok to beautiful Nong Sarai, a primarily rural agricultural area. We disembarked the bus into a sea of smiling faces eagerly greeting us, accompanied by a percussion band and Thai style dancers. The smaller children crowded around a delegate with bright magenta pink hair. We were popular for being different. It reminded me of being a South African attending school in Dubai, where new students were celebrated like exciting toys at Christmas and described as ‘exotic’.

While planting rice, I stepped through what masqueraded as a pond but was actually an area of mud that squished between your toes, covered by shallow water. I pulled small rice plants from a larger bundle in order to individually plant them. The roots needed to be pushed deep into the mud so that water movement wouldn’t wash them away. Worries about broken glass and thorny twigs were forgotten once I had mud between my toes, sunlight dancing across my back - I was seven years old again. After a while however, swimming water spiders and intense

Obiter dictum value such as their community-wide happiness goals. The entire community cooked a buffet lunch for 200 delegates. When our bowls were empty, they offered us more. I thought about how many times we come together as a community in Adelaide to collectively improve the entire whole. It was difficult not to compare their generosity with the Western practice of breaking out our mobile phones to evenly split the bill after eating out with friends.

heat really makes you appreciate the ease of microwavable rice. While releasing hundreds of fish into new homes, I became increasingly frustrated. Not all of the fish arrived safely into the water. Some were shaken too hard or stuck at the opening of the bag because some delegates decided that taking a good photograph was more important than the fishes survival. I took matters into my own hands and stood at the entrance of the line of people, coordinating and giving out blunt, motherly advice - ‘Be careful with your fish, this isn’t a photo opportunity, make sure you hold the bag open, and keep it as close to the water as possible!’

The symposium highlighted the importance of happiness and passion in all that you do. It allowed me to form what will be lifelong networks with like-minded individuals who share a desire to be positive change makers in the world.

I naively thought that we might be offering the villagers some valuable knowledge from our ‘superior’ nations, but happily I was mistaken. The people of Nong-Sarai demonstrated an admirable happiness free from material dependence. They taught us about the sufficiency economy established by King Bhumipol. Household accounting was taught, and making products such as soap and bio-fertilizer saved money. The community leaders also told of the Goodness Bank, established for community members normally unable to access bank loans. They are able to use ‘goodness’ indicators and criteria as assurances for the loan, such as being good leaders or followers, maintaining good health, having an honest career, engaging in learning, and having dinner with your family 2-3 times per week. Community leaders had also set up learning centres for the people of Nong-Sarai.

Most importantly, it demonstrated that there are many selfless people in the world to counterbalance the horrors we may face, and showed me the power that one person can have to effect change. A very big thankyou to UniSA, Julia Davis, and Nadia Radice and the student mobility team for this opportunity.

The smiling district of Nong-Sarai had much less in materialistic terms than we in Australia, and yet they shared so much. They had arguably more of

THE OBITER

LAW ANAGRAMS Find as many words as you can. 1. All words must contain the letter R. 2. All words must be four letters or longer. 3. Find the 9 letter word.

More than 15 words = beginner More than 20 words = good More than 25 words = great More than 30 words = genius

a. LIMAC _ _ _ _ b. CISTJEU

_ _ _ _ _ _ _

c. SDEGMAA _ _ _ _ _ _ _ d. TCNCATRO _ _ _ _ _ _ _ _ 29

Answers over page

THE OBITER

ANAGRAM ANSWERS 9 letter word: corporate operator, recaptor trooper, carport, reactor, creator crater, torpor, parrot, tracer, orator, carpet, carrot, porter, report roper, ocrea, crept, pacer, recap, troop, racer, orate, crate, trace, carer part, care, tear, acre, pear, poor, carp, trap, root, tarp, taro, race, acer, core, rare, crop, port (these are just some examples)

a. CLIENT b. JUSTICE c. DAMAGES d. CONTRACTÂ

THE OBITER

– Careers @ Cowell Clarke — Cowell Clarke are commercial law specialists. Our clients look to us to create value and manage risk. Our lawyers provide legal services, commercial advice and support to clients in all sectors of business and industry, across Australia and internationally. We offer summer clerkships, ongoing part-time law clerk positions and PLT placements.

— Summer clerkship applications Cowell Clarke participates in the South Australian Law Students’ Council Uniform Clerkship Scheme, which prescribes the following dates: Applications Open

Our programs are an integral part of the commencement of a career

9am — Monday 3 July 2017

in law. They can also lead to a full-time position as a graduate

Applications Close

solicitor. Our clerks experience the broadest range of practice

5pm — Monday 24 July 2017

areas, with rotations through property, corporate & commercial, and our various dispute resolution teams. While the focus is on variety, we are also happy to accommodate particular areas of interest. You will have access to and work with senior lawyers who are recognised as being the best in their fields. You will have direct

Commencement of Interviews 9am — Monday 31 July 2017 Offers of Clerkship 9am — Monday 28 August 2017

client contact. An element we believe sets us apart from other law

Communication of Decision

firms is the focus that our partners have on creating a supportive

9am — Tuesday 29 August 2017

and enjoyable work environment. You won’t be expected to work 16 hours per day. We recognise that it is not the time you spend at work, but rather what you do when you are there.

For further information about our clerkships and career opportunities at Cowell Clarke visit www.cowellclarke.com.au/careers

The Obiter Trimester 2 ISSUE 18 2017

Send your contributions to: publications@usalsa.org USALSA Publication 2017