DON’T JUDGE A BOOK BY IT’S COVER... The front cover of Issue 17 is dedicated to Chief Justice Kiefel, who, on 30 January 2017 was the first woman appointed as Chief Justice of the High Court of Australia! You can do it, Kiefel!
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ACKNOWLEDGEMENTS The Obiter team would like to acknowledge the support of USALSA Cover: Jessica Punch Layout: Shannon Guerin Images are those of the authors. We do not own them. Details can be provided upon request. The views and opinions expressed in this publication are those of the individual authors and not those of the UniSA School of Law or USALSA. a USALSA publication © 2017
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CONTENTS PAGE The Team
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Editor’s Letter
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Coming Events
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News 8 Feature 12 Law & Lattes 14 Ratio 16 In Chambers 22 Guess Who 27 Usual Suspects 31
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MEET THE TEAM MEET THE TEAM...
Shannon Guerin Nicholas Karalis Bec Copeland Publications Director Publications Officer
Philippa Jones Editor
Ella Cameron
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Carly-Rae Austin Samantha Wright Tom Edwards
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Editor
Editor
Jessica Punch Editor/Graphic Designer
Ashleigh Bagshaw Editor
With Special Guest Contributors: Seamus Brand Ella Cameron Shannon Guerin Jessica Punch April Nourse Betty Kontoleon Philippa Jones Remember, you could be on this list next edition!
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obiter Editor ’s LetterFROM THE EDITOR the
As acting Publications Director for Issue 17 of The Obiter, I had a big task on my hands.
However, I was up to the challenge and ready to hit the ground running. In this edition, Ella Cameron takes out Matthew Christey for a double shot soy latte, to chat about his role as Solicitor-Advocate at the Legal Services Commission of South Australia, for an old Obiter favourite; Law & Lattes. If you don’t already know, learn more about the current Justices sitting on the bench of the High Court of Australia. We also have a fun game of ‘Guess Who?’ to test your general legal knowledge. This issue will challenge readers to contemplate the legality of some confronting topics, with articles on euthanasia, prostitution and organ donation contributed by current students Jessica Punch, April Nourse and Shannon Geurin. We also have a special feature on the UniSA Legal Advice Clinic, an important initiative by the University in its strive to promote access to justice. Remember, without student contributions, The Obiter wouldn’t be possible! If you would like to contribute to future editions of The Obiter, please contact the editorial team at: publications@usalsa.org On that note, sit down, grab a coffee and I hope you enjoy reading this edition of The Obiter! - Nicholas Karalis &The Obiter team
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UPCOMING EVENTS APRIL 26/4 - Moot Grand Final 28/4 - Witness Examination Grand Final MAY 16/5 - JusticeNet Walk For Justice 20/5 - Law Ball JUNE TBA - Welcome Back Event JULY Week 5&6 - Health & Wellbeing Week 24/7-28/7 - Nominations For USALSA Elections AUGUST 7/8-11/8 - Election Week 18/8 - Quiz Night
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COMPETITIONS During Trimester 1, USALSA held the annual Open Competitions. These include the Lipman Karas Moot, Negotiation, Client Interview and Witness Examination. These competitions are open to all students who wish to compete. USALSA was excited to have Chief Justice Kourakis of the South Australian Supreme Court along with Rick Sarre and Victoria Danambasis judging the Lipman Karas Open Moot. Client Interview was judged by Rachel Spencer and Matthew Atkinson from the UniSA Legal Advice Clinic. Negotiation was judged by Anja Kantic and Vicky Waye. Witness Examination was judged by Judge Millsteed of the Distric Court and Stephen Raineiri. USALSA would like to congratulate the winners of each competition! The winners will now begin preparing for the ALSA National Competitions held in Canberra. The winners will attend ALSA in July and we have no doubt they will do us proud! USALSA would also like to thank everyone who participated in the 2017 Open Competitions
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LAW BALL 2017
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Grab your ball gown, your mask and your dancing shoes because the Law Ball is a-coming! 20th of May is the date and the stunning Cathedral Room at the Adelaide Oval is the venue. Better get in quick and grab your ticket as they get more expensive closer to the date. Anyone with a ticket is also entitled to a discount at Jack London and One Night Stand. Check the Facebook event for more info!
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CAREERS FAIR 2017 The 2017 UniSA Careers Fair was a resounding success! This year, USALSA opted once again to work with the UniSA careers team. The careers team partnered the event with the Australian Association of Graduate Employers Big Meet Careers Fair. There was quite the impressive turn out from students who were treated to a buffet of employers from all over the Public and Private sector including the Crown Solicitor’s Office, the Department of Public Prosecutions, Minter Ellison’s, Kain’s, Wallman’s Lawyers, the College of Law, the Law Society and many more! In even better news, UniSA, Flinders and Adelaide are working towards combining our three law fairs together for next year. This means more employers than we’ve ever seen before and a whole new approach to Careers Fairs in SA. Keep an eye on your USALSA social media channels for more information!
TRUMPCRAWL! On Friday 7th April, the first PubCrawl for 2017, the TrumpCrawl took place. 136 people came out for a YUUGE night, so luxurious, the best, so many more than Flinders. Based on the famous “SEE YOU IN COURT!” tweet (tweeted AFTER Trump’s legal team lost in Court), the TrumpCrawl was nothing if not controversial, we accidentally were shared by AltRight South Australia’s Facebook page and would like to reiterate AGAIN that we are an apolitical organisation. It’s also our first PubCrawl to have gone international with two visiting lecturers from the US taking a shirt and a poster back home with them. By coincidence both Adelaide Law and Flinder Law had their pubcrawls on the same night and SuperCalifornia really struggled to contain the passion of three different law schools singing “Dancing Queen” at the top of their lungs.
NEWS Words: Seamus Brand 9
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Get On Board and Reap the Rewards: Why You Should Join USALSA WORDS: SEAMUS BRAND
In September 2015, I saw a post on the USALSA Facebook group “Position Available – Events Officer!” After reading through the description and realising this was a great opportunity to get cheap booze, I decided I was no longer bitter about my failed bid for election to USALSA in 2014 and I would quite happily apply for the far less stressful appointment. Two weeks later, I was at my first ever USALSA Committee Meeting full of excitement about what I could bring to the table. Over the next few weeks, I helped organise a pub-crawl, then a welcome back event, and I was even lucky enough to organise our first Law Ball a few months later. I had gained so much from these experiences: incredible organisational skills, great
position. Just joining up says a lot about you, as a willingness to put in extra effort in extra-curricular activities means you’re not just there to smash through your degree and start collecting a paycheque, it means you care. Not to mention you usually have to win an election to join and that means something about you must be likeable, right? Love me please. The relationships you build with UniSA staff and industry professionals go a long way as well, it’s great to have them as a reference or just sounding board to help
nothing says “dedication” like a year-long volunteer position
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contacts in the industry, a ridiculously over the top formal way of writing emails, and a great connection with so many UniSA Law students. I had gained so much that I decided I needed more time on the committee, so I ran for President in July 2016.
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My new position came with a whole lot of extra challenges, but the lessons you learn from them are invaluable as you start looking for work. For example, when I recently had an interview with SACAT almost all my answers had something to do with being on USALSA. Time management is a big one, employers like seeing that you can balance Uni, maybe a part-time job, AND a role on the student committee. They also appreciate dedication and nothing says “dedication” like a year-long volunteer
you get where you want to go after Uni. Just the other week USALSA hosted a roundtable discussion on the future of law careers fairs in South Australia. Attendees included representatives from the Flinders and Adelaide Law students’ associations, the Law Society, and over a dozen law firms and legal employers. I don’t know where else you’re going to get a chance to meet and talk to (hopefully) future employers like that. While I was there to represent the best interests of USALSA members, it was a great opportunity to meet the people who may one day be reading my resume in a natural setting, where there is no pressure to network. These opportunities were few and far between for me before I joined USALSA.
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At the end of the day, everyone is at Law School for a different reason and I can’t speak for everyone but I assume most of us would like some form of employment at the end of it. If that’s the case, one of the best things you can do is join up with USALSA. Even if employment isn’t a big worry for you, the skills you learn will stand you in good stead for life. It’s also genuinely fun to be a part of such a great group of people all working to the same goal (and we have the BEST parties). If any of this speaks to you, I strongly urge you to run for a position on USALSA in the Trimester 2 elections, no matter how far through your degree you are. And if you simply can’t wait that long, send me an email because we might have a spare spot on the Committee waiting to be filled!
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WHO'S WHO OF THE HIG H COURT WORDS: PHILIPPA JONES How many of you are part way through a law degree and still don’t know who is on the current High Court bench? Read on to find out about Australia’s highest court and the Justices currently sitting.
The High Court
The High Court is the only court specifically created by the Australian Constitution. The High Court Justices are appointed by the Governor-General in Council1 and can only be removed by the GovernorGeneral in Council, on address from both Houses of Parliament in the same session, on the grounds of misbehaviour or incapacity.c This has never occurred. A Justice is required to retire from the High Court when they reach seventy years of age.3
Current Members Chief Justice Kiefel AC was sworn in as Chief Justice on 30 January 2017.4 She has been member of the High Court since 2007. She has been a trailblazer for women in law being the first female Chief Justice of the High Court; the first woman to be appointed a Queen’s Counsel in Queensland; the first female judge of the Queensland Supreme Court;5 and one of the first women to be appointed as a Federal Court Judge. The Chief Justice left school before she turned 15. She worked as a barrister’s receptionist where she resumed and completed her secondary schooling at night and started studying law.6 She complete a Master of Laws at the University of Cambridge and loves theatre, music, hiking and dogs!7
Justice Bell AC
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was appointed to the High Court in 2009. 8 She was appointed Judge of the Supreme Court of New South Wales in 1999. 9 She studied at the University of Sydney and commenced her career at Redfern Legal Centre where she was involved in defending 58 people arrested during the first Mardi Gras Parade in 1978.10 A significant case she decided as a judge was the defamation case of Rivkin v Amalgamated Television Services Pty Ltd,11 where she ruled it not defamatory to say that someone had homosexual intercourse. 12 Throughout her career she has had a strong commitment to social justice.13
Justice Keane AC was appointed to the High Court in 2013.14 In 2005 he was appointed to the Supreme Court of Queensland and became Chief Justice of the court in 2010. Justice Keane hand 1 Australian Constitution s 72. S 63 defines the Governor-General in Council as ‘the Governor-General acting with the advice of the Federal Exectutive Council’. 2 Ibid 72. 3 Ibid. 4 George Brandis, ‘Address at the swearing-in of The Honourable Susan Kiefel AC as Chief Justice of Australia’ (Speech delivered at the Address at the swearing-in of The Honourable Susan Kiefel AC as Chief Justice of Australia, High Court of Australia, Canberra, 30 January 2017) <https://www.attorneygeneral.gov.au/Speeches/Pages/2017/FirstQuarter/Address-at- the-swearing- in-of-the- honourable-susan- kiefel-ac- as-chief- justiceof- australia.> 5 Malcolm Turnbull and George Brandis, ‘Appointments to the High Courts of Australia’ (Joint Media Release, 29 November 2016) <https://www.attorneygeneral.gov.au/Mediareleases/Pages/2016/FourthQuarter/Appointments-to-the-high- court-of- australia.aspx>. 6 Brandis, above n5. 7 Ibid. 8 High Court of Australia, Virginia Bell AC <http://www.hcourt.gov.au/justices/current/justice-bell>. 9 Ibid. 10 Natasha Stojanvich, ‘Virginia Bell: bringing more to the bench than gender,’ ABC (online), 29 September 2010 <http://www.abc.net.au/news/2009-02-10/ 38570?pfmredir=sm>. 11 [2001] NSWSC 432. 12 Ibid.
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writes his own judgments but has a reputation for finishing them faster than any other High Court Justice.15 Justice Keane attended the University of Queensland and completed post graduate study at Oxford University. At 36 he became a Queen’s Counsel and practiced as a barrister until his appointment to the Supreme Court.
Justice Gageler AC was appointed to the High Court in 2012. He graduated law from the Australian National University and completed post graduate studies at Harvard University.He was admitted as a barrister of the Supreme Court of New South Wales and practiced predominantly in constitutional, administrative, and commercial law.16 As a Senior Council barrister he represented the Humane Society arguing against Japanese whaling and the Australian Capital Territory Government advising anti-terrorism detention powers were unconstitutional.17 He also has a black belt in taekwondo.18
Justice Nettle AC was sworn into the High Court in 2015. He is the oldest person ever appointed to the High Court being appointed at the age of 64.19 He was appointed as a judge of the Victorian Court of Appeal in 2004. He graduated law at University of Melbourne and a Bachelor of Civil Law from the University of Oxford. He was appointed a Queens Counsel in 1992 where he practised predominantly in commercial, equity, taxation and constitutional law. Justice Gordon AC was sworn into the High Court in 2015. She was appointed from the Federal Court of Australia, which she was a judge from 2007. She graduated law from the University of Western Australia and was appointed as Senior Counsel in 2003. She practiced predominantly in commercial, equity, taxation and general civil law matters. According to Phillip Ruddock she is a keen surfer.20 In an unusual turn of events Justice Gordon replaced her husband, Justice Hayne’s position on the High Court, who retired upon turning seventy.21
Justice Edelman AC is the newest member of the High Court appointed in January 2017.22 He
13 Stojanvich, above n10. 14 High Court of Australia, Patrick Keane AC <http://www.hcourt.gov.au/justices/current/patrick-keane>. 15 Lucy Battersby, ‘Man of choice words and keen judgments’, The Age (online), 16 February 2013 <http://www.theage.com.au/business/man-of- choicewords- and-keen- judgments-20130215-2eimq.html>. 16 High Court of Australia, Stephen Gageler AC, <http://www.hcourt.gov.au/justices/current/stephen-gageler>. 17 Sydney Morning Herald, ‘The boy from Sandy Hollow’, The Sydney Morning Herald (online), 10 January 2009<http://www.smh.com.au/news/national/ the-boy- from-sandy-hollow/2009/01/09/1231004286973.html?page=fullpage#contentSwap2>. 18 Ibid. 19 George Williams, ‘Geoffrey Nettle&#39;s appointment shows how bench retirement age needs to better reflect society’, The Age (online), 8 February 2015 <http://www.smh.com.au/comment/geoffrey-nettles-appointment- shows-how- bench-retirement- age-needs- to-better- reflect-society20150208138uv9.html>. 20 Shane Green, ‘New High Court judge Michelle Gordon lauded as a &#39;fabulous&#39; lawyer and jurist’, The Age (online), 15 April 2015 <http://www. theage.com.au/victoria/new-high- court-judge- michelle-gordon-lauded-as- a-fabulous- lawyer-and- jurist-20150414- 1mkz4f.html>. 21 Ibid. 22 High Court of Australia, James Edelman <http://www.hcourt.gov.au/justices/current/justice-james-edelman>. 23 The youngest person ever appointed to the High Court is Herbert Vere Evatt KC. He was 36 when he was appointed. G. C. Bolton, ‘Evatt, Herbert Vere (Bert) (1894–1965)’ (1996) 14 Australian Dictionary of Biography <http://adb.anu.edu.au/biography/evatt-herbert- vere-bert- 10131>;. 24 Turnbull and Brandis, above n5. 25 [2016] FCA 196.
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is the fourth youngest member of the High Court at 43 years old.23 In 2011 he was appointed to the Supreme Court of Western Australia, and was appointed as Judge of the Federal Court of Australia in 2015.24 One of his most significant judgments was ACCC v Valve Corporation (No 3).25
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LAW & LATTES WITH MATTEW CHRISTEY
Matthew Christey started out as a police officer What does your current job as a and Detective of police, before deciding to Solicitor-Advocate for the Legal Services complete a Bachelor of Management (Law Commission of South Australia involve Enforcement) and Bachelor of Laws. In 2013, Christey became the Assistant Director at the Defence Abuse Response Taskforce, where he was responsible for inquiring into allegations of sexual abuse and misconduct in the Australian Defence Force (Federal Attorney Generals Department in Canberra). He then took on a role assisting the Royal Commission into Institutional Responses in Child Sexual Abuse. He was responsible for inquiring into and representing people who had been sexually abused while in the care of various institutions. This included conducting public inquiries into the NSW government and the Catholic Church.
on a daily basis? I work in the Criminal Law Division of the Legal Services Commission. In this role, I meet with clients charged with criminal offences, provide legal advice, and appear on their behalf in court. Did you know what you wanted to do when you started uni? Yes, I had been a police officer for some time, so I knew I wanted to practice law.
Is this how your first-year- self envisaged your career playing out? I envisaged practising criminal law as my career but I was also offered great Christey then worked as a Commonwealth opportunities in Canberra and Sydney early prosecutor for the Commonwealth Department on. of Public Prosecutions in Sydney. In this role, he was responsible for the prosecution of online paedophiles, drug importations into the country, child pornography and offences against the Australian Border Force. One of them included a trial involving the rape of a woman on an international flight into Australia.
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In his current position, Christey works as a Solicitor-Advocate for the Legal Services Commission of South Australia. He is also the director of the Tara Costigan Foundation and the company secretary of the Randwick-Waverley Community Transport Group.
Did you participate in any extracurricular activities while at uni? Ye s , I p a r t i c i p a t e d i n t h e A L S A Wi t n e s s E x a m i n a t i o n c o m p e t i t i o n . Have you done any clerkships? Given my background prior to completing law, I did not apply for clerkships, however, I certainly encourage current students to apply for these opportunities.
What was your first move after What made you apply for this job? completing law school? I was interested in continuing the conduct When I finished law school I was already of criminal defence trials. working for the South Australian Police as a Detective. This placed me in a different If you could summarise your job in 3 position to other graduates. words what would they be? Itâ&#x20AC;&#x2122;s incredibly interesting.
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What is something you have achieved throughout your career that you are proud of? I am most proud of my work at the Royal Commission into Institutional Responses in Child Sexual Abuse. I thought was one of the more important and rewarding roles of my career. How do you deal with working in the criminal law? Criminal law certainly isnâ&#x20AC;&#x2122;t for everyone. I find it the most interesting but the matters can be very serious as can be the consequences for the accused. Personally, I can separate work life from home life. This is very important for lawyers practising in this area. What is the best piece of advice you could give to a law student? Whether you are a first year or final year student always take advantage of the Law Schoolâ&#x20AC;&#x2122;s extra-curricular activities and take every opportunity to apply for placements and clerkships. This experience can potentially give you the edge over other applicants when it comes to applying for jobs after graduation.
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ORGAN DONATION Words: Shannon Guerin
Have you considered organ donation? It’s organs after death, why isn’t everything being done not something everyone thinks about when to prevent this? There are people passing away that fit they are alive, let alone when they are young. the criteria and would have liked to donate, however, their organs are remaining with the deceased rather While you read this there are currently1,400 people than granting another person another chance at life. on the Australian organ transplant waiting list. Waiting for the phone call that will literally save their life. 1 Australia currently has an “opt-in” method regarding organ donation. This is where people that want to The organ donation rates in Australia are currently be considered for organ donation after death have very low especially when compared to a global to sign up and register. This gives all Australians the scale. 2016 was the “record year” with 503 deceased opportunity to voluntarily choose what happens with organ donors (43 of these from South Australia) their organs and tissues. By legalising the opt-out that resulted in 1,447 organ transplant procedures. 2 method, it would mean that “all adults will be deemed to consent to donating their organs and tissue in the The issue is that 1-2% of deceased die in hospital event of their death as the default position; unless they in specific circumstances where organ donation is make it known that they do not want this to happen”. possible. Currently, 69% of people have agreed to In some countries it is the law states that the organs become an organ and tissue donors, however their and tissues of a deceased are available for therapeutic decision is not always able to be effectuated due purposes unless an objection has been recorded. Is to the circumstances for their death. The statutory this a method that Australia should be considering? In definition of death in the States and Territories of my mind it definitely is! So why is legislation not being passed to implement an opt-out scheme? This would Australia is that a person is dead when: allow for more people to donate and a greater amount of people will get the help they need faster.
Statistics have more Australians
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- There is irreversible cessation of circulation of blood in the body of the person; or - When there is irreversible cessation of all function of the brain of the person. With organ donation, the transplant of organs can only be certified with the occurrence of irreversible cessation of all functions of the brain. 3 Is there a way that these figures can be increased?With already a limited amount of people being able to actually satisfy the requirements to donate their organs after death, why isn’t everything being done
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If Australia were to join the opt-out system for human organ and transplant donation, it would just over 24 countries including Austria, Belgium, Spain and Singapore.4 Statistics have shown that more Australians are likely to participate with an opt-out scheme rather than an opt-in. Only 42% chose to donate through the opt-in method, whereas an optout method being implemented has shown that 82% had agreed to donate.5 As these figures show, a lot of people don’t want to consider death while they are alive; therefore organs are missing out on gaining a second chance to save lives. What are the reasons for
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that did not sign up and may have liked to donate. There are still many reasons why a person would object to not donating their organs. It can range from religious or cultural issues, to the physiological status of the organ being of a standard required for transplant. This opt-out method could allow people People should be encouraged to acknowledge what to object online, by post or phone. The option is they would like done to their body. Australian’s still there for people to have a say over their body. are able to make advance care directives to guide family and doctors as to their medical wishes if Organ donation is not something that people they become incapacitated. This decision cannot be just sit around the table discussing. Yes it is overruled by family, therefore organ donation is one important, but a lot of people don’t feel like talking that shouldn’t be over-ruled either. The wishes of the or thinking about death while they are alive. For loved ones are always important when it comes to such an important issue, it should become more organ donation, and the consideration of what they relaxed to talk about the decision, so when the want is always taken into account, particularly when time comes the necessary people would know the decision comes during a time of grief and distress. and can follow the individual’s wishes. Everyone Unfortunately, without people signing in to the opt-in of legal age should express their desires of service, the decision is left to their next of kin, which what they want done with their body. It is the is one more thing they need to worry about during individual’s right to decide what they would like an emotional time. Currently, if the potential donor done to their body after they have passed. It is has not expressed their desire, the ‘senior available always a good idea to highlight and talk about next-of-kin’ is notified ad the decision is left to them the decision you want to make. Especially as to express consent or object to the donation. If the death occurs in a sudden and unexpected manner next of kin does not know, the legal responsibility of for those that are most ideal for being a donor. the Designated Officer has been performed to make enquiries and find reasonable consent, then they may More needs to be done by the Government to authorise approval. If the legislation was to change, a meet the demand of the increasing number of Designated Officer is required to undertake enquires people waiting for a transplant. An opt-out option of the next of kin to make a decision if consent had for organ donation should be a priority for the not previously been granted with an advanced care Australian Government. Although there has been directive. It would automatically be assumed that a 76% increase in the number of deceased organ consent was given if there was no opt-out form signed. donations, there is still a long way to go, and this This would decrease the work load of Designated could start with a law reform.6 In my mind, the Officers as they have to investigate each individual positives far outweigh the negatives. If people have case. It would allow for the stress of relatives and loved to sign up now they can also sign up to opt-out. ones to be reduced at a time of grieving. If they have not opted out the automatic decision is yes. the vast difference between the opt-out/opt-in methods? Does it come down to a lack of knowledge? Are people not thinking about their deaths? What is evident is that signing up to donate your organs and tissue is not a high priority for some.
1 Australian Government Organ and Tissue Authority, Facts and Statistics (2014) Donate Life <http://www.donatelife.gov.au/discover/ facts-and- statistics>. 2 Ibid. 3 3 Australian Government National Health and Medical Research Council, Recommendations for the Donation of Cadaveric Organs and Tissues for Transplantation (12 November 2014) National Health and Medical Research Council <https://www.nhmrc. gov.au/guidelines-publications/e33>. 4 William Isdale and Julian Savulescu, Opt-Out Organ Donation in Wales: A Model for Australia? (15 July 2013) The Conversation &lt;http://theconversation.com/opt-out- organ-donation- in-wales- a-model- for-australia-15945>. 5 Ibid. 6 Australian Government Organ and Tissue Authority, 2015 A Record Year for Organ and Tissue Donation and Transplantation in Australia (2015) Donate Life <http://www.donatelife.gov.au/2015-record- year-organ- and-tissue-donation- and-transplantationaustralia-0>.
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It would remove the requirement of filling out paper work and those that cannot be bothered to sign up to donate but wished to donate their organs. Generally, people are more likely to express a negative consent, if they do not agree with donation and therefore are more likely to take action. If the currently legislation requires people to sign up to volunteer for organ donation, in theory it should be just as easy for someone to opt-out. This would help save a lot of guess work for those
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OPINION: WHY THE LEGALISATION OF EUTHANASIA IS WELL OVERDUE Words: JESSICA PUNCH In November last year the time came yet again for another bill to come before South Australian Parliament to legalise voluntary euthanasia.1 It was defeated for the fifteenth time in a debate lasting until 4:00am. Why it was defeated yet again is unclear.
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There are two forms of euthanasia; passive and active. Passive euthanasia occurs by the withdrawal or withholding of life sustaining measures and is currently permissible in Australia. Active euthanasia is the practice of a medical practitioner intentionally aiding a competent patient in committing suicide by prescribing or administering medication that will end their life. Debates over euthanasia are often complicated by issues regarding involuntary euthanasia where a patient is unable to consent, thus for the purposes of brevity I will be referring solely to voluntary euthanasia.
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The Voluntary Euthanasia Bill focused on a competent adult subjected to ‘unbearable and hopeless suffering’ from a medical condition (need not be terminal) as criteria for eligibility of voluntary euthanasia. 2 Any persons requesting euthanasia were required to be examined and assessed independently by two medical practitioners. 3 Unbearable suffering would be determined subjectively and hopeless is defined as when the patient has ‘no reasonably available medical treatment that would reduce or relieve the suffering to a level bearable to the person’. 4 I believe the subjective element is necessary as each individual possesses different views regarding what an acceptable quality of life is. Life should not be measured as mere existence, rather it should be measured by the quality of the life in which a person has. The law provides great autonomy over medical treatment so long as the patient has capacity. As long as you can understand the nature, purpose and effects of the proposed treatment, you can refuse it.5 E ven if your reasoning objectively appears irrational, you
can still refuse any treatment as long as capacity is met. Why should this autonomy not extend to a competent adult making an informed decision in which they fully understand the nature, purpose and effect of the life ending treatment? Arguments founded on religious principles and morality often lack any merit. Simplistic views with the belief euthanasia is immoral based upon principles such as ‘all life is sacred’ are artificial and fail to consider the complexity of issues regarding why a patient would seek euthanasia such as the physical and psychological impact living with unbearable suffering can have. Merely stating that taking the life of another through euthanasia is immoral, does not make it so. There is a fundamental flaw in considering passive euthanasia as morally acceptable and active euthanasia as not. From a consequentialist standpoint, is there really any moral difference between passive and active? Contrast these hypothetical scenarios: 6 1. A father physically drowns his own child. 2. A father sees his own child drowning, has the means to save the child, but chooses not to act and his child drowns. Whilst this example is extreme, it illustrates how two different actions can lead to the same moral outcome. How is allowing a person to die by withdrawing or withholding life sustaining treatment morally different to administering a substance that would hasten a person’s death? Further, how can it be morally justifiable to allow a person to continue suffering when they have voluntarily requested their pain be ended and dignity be preserved by allowing them to die on their terms when they are going to die regardless. If we are ‘cruel by refusing to let nature free patients from the trap of technology, we are both cruel and conceptually blind when we refuse to let technology free patients from the trap of nature’.7 A person ‘should not be degraded by being required to endure prolonged, useless suffering’ when no quality of life remains in the process of anticipating a welcomed death.8
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The strongest argument that those opposing the practice argue is that legalising active euthanasia will lead to a slippery slope where life is devalued and we eventually condone non-voluntary euthanasia. This involves euthanising a patient who is capable of consenting but has not. The issue of familial abuse where patients are unduly pressured into euthanasia to relieve the burden theirillness has on their family is one of the driving issues in support of the slippery slope argument. Therefore life could be devalued so much as to make way for convenience.
Moreover, opponents argue that the threshold, for example ‘unbearable and hopeless suffering’, may be lowered over time. Even if this were to occur, strict regulation such as the requirement of at least two medical practitioners to approve euthanasia for an individual could prevent cases where it would be inappropriate for an individual to undergo the practice. Jurisdictions permitting active euthanasia all have strict regulatory guidelines for its practice. Evidence suggests that active euthanasia is being widely practiced underground in Australia despite its prohibition.10 Therefore it is not subject to regulation, transparency or accountability. It is necessary to
There is a fundamental flaw in considering passive euthanasia as morally acceptable and active euthanasia as not. The few jurisdictions that permit active euthanasia provide promising models for putting theory into practice. Since active euthanasia was legalised in the Netherlands, no evidence has supported a slippery slope. Statistics have shown that the frequency of active euthanasia for vulnerable patients, namely older patients at risk familial abuse, were low compared to younger patients, suggesting that the abuse theorised may not be realistic. 9 Instead it suggests that legalisation has enabled eligible patients a right to exercise their autonomy and die a dignified death. Moreover, opponents argue that the threshold, for example ‘unbearable and hopeless suffering’, may be lowered over time. Even if this were to occur, strict regulation such as the requirement of at least two medical practitioners to approve euthanasia for an individual could prevent cases where it would be inappropriate for an individual to undergo the practice. Jurisdictions permitting active euthanasia all have strict regulatory guidelines for its practice.
implement laws to provide this regulation and allow individuals to die a dignified death. As autonomous individuals we should be able to make rational decisions about how or when we die in order to maximise quality of life and prevent individuals from being trapped by the constraints of their illnesses. If you support euthanasia, when the time inevitably comes again for another bill to come before Parliament, contact your local State MP and let them know that you support the legalisation of euthanasia.
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1 See Voluntary Euthanasia Bill 2016 (SA). 2 Ibid s 4. 3 Ibid s 11(2). 4 Ibid s 4(4). 5 See eg, Consent to Medical Treatment and Palliative Care Act 1995 (SA); Re C [1994] 1 WLR 290. 6 James Rachels, ‘Active and Passive Euthanasia’ (1975) 292(2) The New England Journal of Medicine 78. 7 Patrick D Hopkins 1997, ‘Why does removing machines count as “passive” euthanasia?’ (1997) 27(3) Hastings Center Report 29, 37. 8 Bernadette Spina, ‘Ethical Justifications for Voluntary Active Euthanasia’ (1998) 3(1) Perspectives on Law and the Public Interest 71, 75. 9 Judith Rietjens et al, ‘Two Decades of Research on Euthanasia from the Netherlands. What have We Learnt and What Questions Remain?’ (2009) 6(3) Journal of Bioethical Inquiry 271, 279. 10 Ben White, Fiona McDonald and Lindy Willmott, Health Law in Australia (Thomson Reuter, 2 nd ed, 2010) 443.
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TAKING CONSENSUAL ADULT PROSTITUTION OUT OF THE CRIMINAL CONTEXT IN SOUTH AUSTRALIA Words: april nourse
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Prostitution has been recognised as a criminal offence in South Australia as early as the 1800s — an era where the sex industry was denounced as a great ‘social evil’.1 But in the last 200 years since prostitution was first introduced into the criminal context, South Australia has seen a dismal change in its legislative regimes governing these laws, leaving the state well behind the times in terms of reform. South Australia has not affected any amendments to its laws on prostitution since 1953, fixating the state in the mindset of the pre-sexual revolution era. 2 The sexual revolution of the 1960s brought with it ‘a decisive break [from] the preceding values which prescribed confinement of women’s sexual pleasure within the suburban walls of heterosexual marriage’.3 Unfortunately, the laws as they currently stand fail to reflect these significant changes in social values, attitudes and behaviours on sex and sexuality that have since been adopted by society. 4 Historically, prostitution under the criminal law has been dealt with by varying degrees of criminalisation.5 Many Australian states have taken different paths when it comes to options of law reform on the issue, with the most predominant models of choice being decriminalisation, legalisation, or the implementation of regulatory schemes.6 South Australia has been one Australian jurisdiction that has continually struggled with determining which path to take, with six failed attempts at reform being made as early as the 1980s.7 Bills were reintroduced into and dismissed fromSouth Australian Parliament in 2012 and 2013.8 The Statutes Amendment (Decriminalisation of Sex Work) Bill 2015 (SA)9 was introduced in early September of 2015 and still remains
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before Parliament. The extensive attempts at reforming the laws on prostitution in South Australia, as well as the vast amount of literature on the subject, stress the prevalence of the issue. The South Australian laws on prostitution are dealt with under both the Criminal Law Consolidation Act 1935 (SA) and the Summary Offences Act 1953 (SA).10 The criminalisation of prostitution under these acts can be divided into three categories of offences: offences penalising prostitutes; offences penalising those involved in the management and organisation of sex; and offences penalising the clients of prostitutes.11 Under these statutes, the act of selling sex itself remains legal, but the combination of other laws governing the area, means that prostitution is essentially illegal.12 The debate on how to best manage the laws on prostitution is certainly not a new concept, and is a topic of conversation that has had a polarising effect on an overwhelming majority.13 On one side of the argument are those who claim not only that prostitution is a threat to the morality of society, but also that it demeans women to nothing more than a sexual commodity at the disposal of men. 14 Certain social problems associated with prostitution also fuel the argument against any reforms to the law. Concerns that prostitution leads to an increase in organised crime, police corruption, violence against women, the sexual exploitation of children, human trafficking, a decline in public health standards, and a decrease in neighbourhood value, all feature as some of the more prominent problems society may face if a move towards decriminalisation or regulation is adopted.15 On the other hand, there are
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those who advocate for the human rights of sex workers, claiming that prostitution should be recognised as a legitimate choice of work.16 Supporters of decriminalising prostitution claim that a human rights approach should be applied to the sex industry and prostitution, which would see sex workers afforded the same standards of occupational health and safety as other industries.17 Amnesty International has been a strong advocate for the decriminalisation of prostitution on an international scale, and has recently published their policy on protecting sex workers from human rights violations.18 The policy identifies the following violations of human rights as a consequence of the criminalisation of prostitution: [T]he rights to … liberty [and] autonomy; the right to equality and non-discrimination; the right to the highest attainable standard
of health; the right to just and favourable conditions of work; and the right to remedy for human rights abuses. 19 The illegality of prostitution in South Australia means that sex workers are disinclined to report instances of criminal activity or violence to the police due to the threat of personal prosecution under the criminal law.20 This has a significant impact on the safety and overall wellbeing of sex workers in the state. The South Australian laws on prostitution have been described as socially regressive, archaic and nothing more than a representation of a 19th century view that the ‘sexuality of all women [must be] disciplined and controlled’.21 If the laws governing prostitution remain unchanged, South Australia is at risk of being the only jurisdiction in Australia that has failed to move towards a model of decriminalisation.
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1 Stephan Ridgway, The Sexual Revolution of the 60s Sexuality & Modernity <http://www.isis.aust.com/stephan/writings/sexuality/ revo.htm>. 2 Victoria Nagy and Anastasia Powell, ‘Legalising Sex Work: The Regulation of ‘Risk’ in Australian Prostitution Law Reform’ (2016) 28(1) Current Issues in Criminal Justice 1, 5–6; Max Opray, ‘Legalising Sex Work in SA, The Saturday Paper (online), 11 July 2015 <https://www.thesaturdaypaper.com.au/news/law-crime/2015/07/11/legalising- sex-work-sa/14365368002106>. 3 Sex Industry: The 19th Century (10 May 2007) SA Memory <http://www.samemory.sa.gov.au/site/page.cfm?u=666#e1453>. 4 Keith Mason, Old Law, New Law: A Second Australian Legal Miscellany (Federation Press, 2014) 21. 5 Penny Crofts and Jason Prior, ‘The Proposed Re-introduction of Policing and Crime into the Regulation of Brothels in New South Wales’ (2016) 28(2) Current Issues in Criminal Justice 209. 6 Victoria Nagy and Anastasia Powell, ‘Legalising Sex Work: The Regulation of ‘Risk’ in Australian Prostitution Law Reform’ (2016) 28(1) Current Issues in Criminal Justice 1, 1. 7 Ibid 6. 8 Ibid 5. 9 Statutes Amendment (Decriminalisation of Sex Work) Bill 2015 (SA). 10 Criminal Law Consolidation Act 1935 (SA); Summary Offences Act 1953 (SA). 11 Susan Pinto, Anita Scandia and Paul Wilson, ‘Prostitution Laws in Australia’ (1990) 22 Australian Institute of Criminology; Trends and Issues in Crime and Criminal Justice 1, 2–4 <http://www.aic.gov.au/media_library/publications/tandi_pdf/tandi022.pdf>. 12 Victoria Nagy and Anastasia Powell, ‘Legalising Sex Work: The Regulation of ‘Risk’ in Australian Prostitution Law Reform’ (2016) 28(1) Current Issues in Criminal Justice 1, 6. 13 Sheila Jeffreys, The Idea of Prostitution (Spinifex Press, 1997) 1. 14Ibid 2; Barbara Milman, ‘New Rules for the Oldest Profession: Should we Change our Prostitution Laws?’ (1980) 3 Harvard Women’s Law Journal 1, 3. 15 Lisa Carson and Kathy Edwards, ‘Prostitution and Sex Trafficking: What are the Problems Presented to be? A Discursive Analysis of Law and Policy in Sweden and Victoria, Australia’ (2011) 34 The Australian Feminist Law Journal 63, 64; Barbara Sullivan ‘When (Some) Prostitution is Legal: The Impact of Law Reform on Sex Work in Australia’ (2010) 36(1) Journal of Law and Society 85, 87. 16 Sheila Jeffreys, The Idea of Prostitution (Spinifex Press, 1997) 2. 17 Lisa Carson and Kathy Edwards, ‘Prostitution and Sex Trafficking: What are the Problems Presented to be? A Discursive Analysis of Law and Policy in Sweden and Victoria, Australia’ (2011) 34 The Australian Feminist Law Journal 63, 65; Barbara Sullivan ‘When (Some) Prostitution is Legal: The Impact of Law Reform on Sex Work in Australia’ (2010) 36(1) Journal of Law and Society 85, 88. 18 Amnesty International, Amnesty International Publishes Policy and Research on Protection of Sex Workers’ Rights (26 May 2016) Amnesty International <https://www.amnesty.org/en/latest/news/2016/05/amnesty-international- publishes-policy- and- research-onprotection-of- sex-workers- rights/>. 19 Amnesty International, ‘Amnesty International Policy on State Obligations to Respect, Protect and Fulfil t h e H u m a n R i g h t s o f S e x Wo r k e r s ’ ( P o l i c y N o 3 0 / 4 0 6 2 / 2 0 1 6 , A m n e s t y I n t e r n a t i o n a l , 2 6 M a y 2 0 1 6 ) 1 0 . 20 Isabel Dayman, ‘Sex Work Legislation Bill Introduced in Australia’s Upper House’ ABC (online) 9 September 2015 <http://www.abc.net.au/ news/2015-09- 09/debate-over- sex-work- legalisation-in-sa-continues/6755828> Amnesty International, ‘Amnesty International Policy on State Obligations to Respect, Protect and Fulfil the Human Rights of Sex Workers’ (Policy No 30/4062/2016, Amnesty International, 26 May 2016) 12. 21 Marcia Neave, ‘The Failure of Prostitution Law Reform’ (1988) 21 Australian and New Zealand Journal of Criminology 202, 203; Chris Duluk, ‘South Australia’s Socially Regressive Sex Trade Laws Need Reform’ on Hugh McDermott MP, Law Crime Politics Blog (9 February 2016) <http://www.hughmcdermott.com/south_australia_s_socially_regressive_sex_trade_ laws_need_reform>.
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LEGAL ADVICE CLINIC words: betty kontoleon
IN CHAMBERS
The UniSA Legal Advice Clinic has been operating since 2011 and over the past seven years the Clinic has played an important role in delivering the best possible clinical legal education to law students at the University of South Australia as well as providing confidential, free legal advice to members of the community. I am proud to say that I have been privileged enough to be a part of this amazing project since the middle of 2014 and have worked closely with students who have taken part of the Clinic either through the Advanced Placement elective, their GDLP or as volunteers (post completion of their elective placement). The Clinic has been so successful thanks to the tireless and invaluable efforts of the rest of the team, Rachel Spencer, Matthew Atkinson, Julie Watts and by the support of the Law School and University.
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To date the Clinic has assisted almost 2000 clients and provided over $1.6m worth of pro bono legal work. In conjunction with this great achievement, the Clinic has been able to provide ongoing clinical legal education to over 200 law students. The feedback we have received from students who have come through the Clinic doors is invaluable and reassures us that we are contributing to the development of legal and ethical skills that all law graduates require as they enter the workforce. The Clinic provides law students with a unique advantage in the job market and I have been asked to provide several references from varying prospective employers regarding students that have passed through the Clinic. Under the supervision of qualified legal practitioners, the law student advisors at the UniSA Legal Advice Clinic offer free legal advice on a range of matters including criminal, family, debt claims, car accidents, tenancy, and neighbourhood disputes. The Clinic is also involved in undertaking general research for the community with regards to various matters. Since 2015, the Clinic has also been involved in a collaboration with Match Studio Plus in the
School of Art, Architecture and Design. This partnership has led to the ongoing delivery of free legal advice seminars (presented by the law students working in the Clinic) to past and current students of the University of South Australia that relate to the artistic and creative industries.
the Clinic has assisted almost2000 clients and provided over $1.6m worth of pro bono legal work The Clinic is based in the Law Building at UniSAâ&#x20AC;&#x2122;s City West Campus, offering services from this location Monday to Friday. Free legal services are also offered at the Port Adelaide Magistrates Court on Fridays, and at the Elizabeth Magistrates Court each Tuesday for clients who require advice relating to Investigation Summons hearings. Free financial counselling is also available as part of the Elizabeth Magistrates Court service. In addition, the Legal Advice Clinic conducts Community Legal Education (CLE) on most areas of the law and is available to run free CLE sessions for community groups. If you would like more information on our service, please contact us. Trained in professional conduct, Clinic staff are courteous, respectful and professional at all times and client information and enquiries are treated as completely confidential. The Clinical experience is paramount to a studentâ&#x20AC;&#x2122;s understanding of the theory of law they have learnt through their degree and it is a great way for students to develop their ability to apply their knowledge to practical situations. If you would like more information on the Clinic and how you can get involved, please feel free to email any of the members of the team.
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IN CHAMBERS 23
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words: PHILIPPA JONES
AURORA INTERNSHIP
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We all know practical experience is an important addition to a law degree, especially for those of us wanting to practice law. Whether you undertake it at theUniSA Legal Advice Clinic or through internships and volunteering, experience is valuable to learn, and then improve your ability to apply your knowledge learnt throughout your degree. This article will provide information on the Aurora Project and will give some insight into the program through my experience. The Aurora Project is a program that places students into internships with legal practices andorganisations that are involved in aboriginal issues. Placements can be undertaken all aroundAustralia and in a range of different organisations including barristers, officers, communitylegal centres and law officers.
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For my internship I was placed with Adelaide barrister, Mr Andrew Collett, AM. Andrew practices in areas of law including Aboriginal issues, workers compensation, discrimination,personal injury and administrative law. He has been involved in historical cases including thetraditional owners of the Maralinga Lands, compensation claims arising from the radioactivecontamination of their land, the first South Australian â&#x20AC;&#x2DC;stolen from
generationâ&#x20AC;&#x2122; action, and counselfor the Aboriginal Legal Rights Movement concerning the Aboriginal issues rising theHindmarsh Island Bridge. While interning with Andrew, I worked in a range of areas of law including discrimination, personal injur y, stolen generation compensation claims, administrative law, and trusts. During my internship I attended meetings with clients, intstructing solicitors, witnesses and exper t witnesses, attended hearings in the Industrial Relations Court, Supreme Court and District Court, attended mediations and conferences, completed research and drafted documents. I gained an understanding of what it might be like to be a barrister; fast paced, with an immense amountof responsibility on your shoulders. For some clients the barrister is their last resort. They arerelying on your knowledge and actions, perhaps to right an injustice, ensure their rights aremaintained and/or help give them a new start.This was something that made a big impressionon me throughout my internship. Working with a barrister gave me my first contact with a brief. For those of you that have not come across one before, this is a collection of documents, both written and collected by the instructing solicitor about the matter. It contains all
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the information the instructing solicitor has gained on the matter. These can behundreds of pages long and can contain information on the most private information about a client. It was a strange feeling, not only reading these briefs, but also, after reading them, to then meet the client, as I felt like I knew them personally despite never having met them before. I would like to thank Andrew and the Aurora Project for giving me this opportunity, from which I have gained many skills and a lot of knowledge. I would recommend the Aurora Project internships to anyone interested in gaining valuable practical experience in law. Applications for internships in summer 2017/18 are open from the 31 July through 25 August. For more information, and to lodge an application, go to: http://auroraproject.com.au/ about-applying-internship
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ONE Clue 1: Was born Judith Susan Blum Clue 2: Stars in a reality courtroom series featuring “real cases with real rulings”. Clue 3: They passed the New York state bar examination in 1965. TWO Clue 1: Was voiced by Phil Hartman on a popular TV show. (RIP) Clue 2: Their legal practice is named “I Can’t Believe It’s a Law Firm!” which also offers “expert shoe repair.” Clue 3: Works “on contingency. No, money down!” THREE Clue 1: Played by Reese Witherspoon Clue 2: Attended Harvard Law School, class of 2004 Clue 3: Described as “a sorority girl who attempts to win back her ex-boyfriend by getting a law degree.” FOUR Clue 1: Current Chief Justice of Australia (since 30 January 2017). Clue 2: Born 17 January 1954 in Cairns, Queensland. Clue 3: First woman to be appointed the CJ role!
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INTERSTATE MOOTING Mooting competitions are a fantastic way to build valuable advocacy and legal research skills that can benefit you greatly throughout your degree and in the legal profession. Participating in moots outside of those offered in law school look great on your resume and help you stand apart from other candidates. Here are some of the moots that are run throughout the year:
Administrative Appeals Tribunal National Mooting Competition 2017 dates TBA
Sir Harry Gibbs Federal Constitutional Law Moot:
Organised and hosted by Melbourne University Law Studentsâ&#x20AC;&#x2122; Society 24th - 26th September
Animal Law Moot
Organised and hosted by Flinders Law School 16th -17th September
Australia & New Zealand Air Law Moot:
Visit ANZALM website for more details http://www.law.auckland.ac.nz/en/about/notices/notices-2016/05/air-law-moot. html
For more information visit www.alsa.asn.au or speak to one of the USALSA Committee members!
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ANSWERS
ONE: JUDGE JUDY
TWO: LIONEL HUTZ
THREE: ELLE WOODS
FOUR: CHIEF JUSTICE SUSAN KIEFEL
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– 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 Applications Close
solicitor. Our clerks experience the broadest range of practice
5pm — Monday 24 July 2017
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in law. They can also lead to a full-time position as a graduate 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
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at Cowell Clarke visit www.cowellclarke.com.au/careers
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#USALSA TO GET YOUR PHOTOS PUBLISHED HERE NEXT EDITION!
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is the only student magazine for law students at UniSA.
While created by a core group of creative students, we can’t do it all...
that’s why we need your help. to ensure it really is a magazine for all law students. If you have ideas for columns, or want to submit a story yourself, we want to hear from you... We want your contributions to this magazine
know of an issue that needs addressing,
get in touch with our friendly team...normally creating a ruckus in the library or ‘studying’ at the pub
orpublications@usalsa.org drop us an email at a USALSA publication © 2017
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