The Obiter Issue 15 by The Obiter Magazine

Issue 15

CONTENTS Editorial ................................................................................... 3 The Team ................................................................................ 4 Coming Events ....................................................................... 5 FEATURE Parenting in Prison - Ashleigh Bagshaw .......................................... 6 Q&A With Outgoing USALSA President - Sunny Luthra .............. 9 RATIO Legal Aid Matters - Georgia McRae & Mikele Prestia ....... 10 The Insanity Defence on Trial - Shannon Guerin ............. 14 Concussion Litigation - Luke Taylor .................................. 16 Hospitality Workers’ Rights - Stephen Ranieri ................... 18 CROSS-EXAMINATION Law & Lattes - Ivan Shearer, Adjunct Professor of Law ... 21 IN CHAMBERS Aurora Native Title - Henry Koehne .................................... 24 Left Me Wonton More - Antonella Rodriguez .................... 26 My Week at Youth Parliament - Murtaza Dostdar ............ 28 UniSA Mooting - Travis Shueard ........................................ 29 OBITER DICTUM Hello from Carleton Law School - Shani MacIsaac .......... 32 When Your Client is Really A Pig - Sonia Griesbach ......... 34 SHUEARD J You May Not Like The Result, But That’s Democracy ...... 36

FROM THE EDITORS

I almost can’t believe that it’s my third and final Obiter as Publications Director. I’m also thrilled to announce that it is the largest edition yet, with 38 pages of goodness for you to enjoy, when you get a chance to take a break from Pokemon Go. For this edition, we see a number of first time contributors with some brilliant offerings for the law school cohort, as well as some long time favourites. Ashleigh Bagshaw gives us a comprehensive look into the issue of parenting in prison, in light of a campaign by the Women Lawyer’s Association to allow women to keep their young children while incarcerated. Mikele Prestia and myself have a look at cuts to legal aid, and Shannon Guerin examines the insanity defence. Luke Taylor considers concussion litigation in the AFL while Stephen Ranieri returns to discuss the issue of hospitality workers having wages

deducted - a topic likely to be relevant for many students! We discuss the China South Sea dispute with the erudite Adjunct Professor Ivan Shearer, and a number of students give us an overview of what’s been going on at UniSA this trimester. Canadian exchange student Shaani MacIsaacs reflects on what she learnt in Australia (hint: it involves beer), and Sonia Griesbach takes us inside the fascinating world of animal trials in Medieval Europe. Finally, the incomparable Travis gives us his personal thoughts on the recent Federal election in Shueard J. Plus, I top off my law school career with a poorly drawn cartoon Trump. I must admit when I first joined the USALSA committee, this is not how I thought it would end, but it seems fitting. - Georgie McRae & The Obiter team

THE TEAM Georgie McRae

Travis Shueard

Carly Austin

Ashleigh Bagshaw

Sarah Dinham

Tom Edwards

Publications Director

Editor

Philippa Jones Editor

Editor-In-Chief

Editor

With guest contributors including - Mikele Prestia - Stephen Ranieri - Henry Keogh - Murtaza Dostdar - Sonia Griesbach - Antonella Rodriguez - Shannon Guerin And more...

COMING EVENTS Lipman Karas “Choose Your USALSA Elections Timeline Own Adventure” Quiz Night 19th of August Nominations are NOW OPEN To be held at 6:00pm at Phonatic, 171 Hindley Street Tickets $20

Voting occurs during Week 9 AGM: 17 August, 12pm - 2pm at a venue TBC

MOTHERS & BABIES:

PARENTING IN PRISON Words: Ashleigh Bagshaw

the dignity of the Australian legal system, the imprisonment of a parent needs to be considered from the perspective of a child and the double punishment of having children removed needs to also be considered.

The Women Lawyers Association of South Australia (WLASA) has appealed to the Hon Peter Malinauskas, the current South Australian Corrections Minister, to introduce changes into South Australiaâ&#x20AC;&#x2122;s corrections system to prevent the separation of young children and their mothers during their foundational years of development.

Currently, incarcerated mothers in South Australian gaols are granted limited access to their children, and if they give birth in prison, their children are taken from them days after. The separation of children from their mothers has detrimental effects on the childâ&#x20AC;&#x2122;s healthy development, including an inability to develop secure attachment. To develop a secure attachment a mother needs the opportunity to nurture a parentchild relationship from birth; the failure to do so may have significant implications for a childâ&#x20AC;&#x2122;s development

FEATURE

Throughout 2016, there has been rising pressure on the South Australian government to fund residential facilities in prisons to accommodate the infant children of incarcerated mothers.

Approximately 38,000 Australian children live with parental incarceration every year. While there is a need to penalise perpetrators of criminal offences to uphold

“

Separation of children from their primary caregiver before three years of age may be particularly detrimental to the quality of the parent-child attachment.

and future mental health. Separation of children from their primary caregiver before three years of age may be particularly detrimental to the quality of the parent-child attachment. Infants who do not have a secure attachment with a primary caregiver experience heightened periods of separation anxiety and stranger anxiety; the younger the child is at age of separation, the greater the emotional trauma experienced. Mothers are also vulnerable to mental and emotional psychological health issues, insecure attachments with their child, and parenting incompetence, which further impacts on the child.

reference to the best interests of the child, as well as the needs of the mother.

There has been a growing awareness of the needs of incarcerated mothers and their children in the Australian Criminal Justice system since 1994, when a Women’s Action Plan was established in New South Wales to address the issues of parents in prison.

These programs have the long-term capacity to improve parenting skills and reduce re-offending in these women, ultimately leading to the diversion of their children from following a similar path. Other States have taken similar measures, with Western Australia, Victoria, Queensland, the Northern Territory and the Australian Capital Territory all providing programs and facilities which cater for incarcerated mothers and their infant children.

The recommendations of this plan led to the establishment of the Mothers and Children Program Policy; a policy which examined the options available for female prisoners to continue parenting their children whilst incarcerated. It was suggested that full time and occasional residence programs were some of the most effective means for ensuring that this was achieved. It was noted that this option was determined with

As a result of these recommendations, two facilities have been opened in New South Wales since 1996 which support women inmates, including those with young children. Parenting policies and programs are in place in these facilities to support mothers in developing positive parenting skills. Programs such as ‘Mothering at a Distance’ (MAAD), a parenting program for female prisoners in correctional facilities across New South Wales, have been implemented with the aim to break the intergenerational cycle of crime.

South Australia remains one of the only States which has failed to incorporate such measures, leaving incarcerated South Australian women and their children vulnerable to poor life outcomes. This could be addressed by adopting

a similar model to New South Wales. In responding to public pressure, Malinauskas has noted that the government is focused on improving children’s access to their incarcerated mothers. He argues however, that placing children into such facilities may not be conducive to the wellbeing of their upbringing in the absence of appropriate facilities. Malinauskas would not commit to an upgrade of gaol facilities to accommodate children in the foreseeable future, stating that ‘prisons are not ideal places to be raising children and the Government will always be putting the interests of the child first.’ Since making these comments however the Women Lawyers Association of SA (WLASA) has written to, and met with, the Minister and understands that he has now informed himself more fully on the research in this area, and agrees that there may be some benefit, in some instances, for such facilities. In fact the Department’s own Women Offender Framework Development Project 20142019 includes as an aim – to increase support for women’s access to their children, and WLASA understands that some moves to increase this access are imminent. The Minister, however maintains that the cost of establishing such facilities is prohibitive. WLASA plan to further make the case for such facilities, including drawing some attention to potential cost benefits of such programs. Despite the current lack of facilities in South Australian women’s prisons, it is evident that the failure to consider the needs of children in relation to maintaining a positive relationship with their mother may potentially be a breach

of Article 9 in the Convention on the Rights of the Child; ‘Children should not be separated from their parents unless it is for their own good. For example, if a parent is mistreating or neglecting a child’. Furthermore, the incarceration of mothers with children provides an opportunity for the criminal justice system to address both the personal and parenting issues of these woman. Imprisonment is not evidence of a woman’s lack of desire, nor of her inability, to perform her parental duties. It has been observed that workers in the area generally agree that only a small minority of women prisoners are unequivocally unsuitable for contact with their children; a finding that appears to be corroborated by evidence. The need for incarcerated mothers to have access to their children does not reflect the rights of the prisoner, but the rights of the child to be spared unnecessary hardship and trauma as a result of their parent’s imprisonment. In light of this, it is essential that South Australia facilitates a program to support incarcerated mothers to care for their children.

Q&A WITH OUTGOING EL PRESIDENTE

SUNNY LUTHRA, USALSA Words: Sunny Luthra

of the major tasks. The President is the overseer of the entire Committee and is responsible for managing each portfolio and ensuring work is completed. We also have to get our hands dirty on more than one occasion. Should I run for President? If you have a passion for serving students and can commit time to a very demanding role you may be the person for the job!

As I sit here, ten kilos fatter and with more grey hairs than when I started my presidency I begin to wonder, was it worth it? The simple answer is yes! Serving as USALSA’s president for the past year has been an amazing and challenging experience. I have had the pleasure of bringing together law students from all years and being a part of every aspect of USALSA. Seeing the Association grow into something bigger than it’s ever been was the highlight of my experience. Not only has the Association grown but I have as a person as well. What was your favourite part of being president of USALSA? Being referred to as El Presidente on a daily basis! What does a President actually do? Pulls out their hair and has amazing mood swings… Well, those are only a couple

What was the funniest moment on the USALSA Committee? Convincing Alex (Careers Director) that Wilbur (Vice-President) had resigned and faking a physical altercation. What is the best piece of advice you could offer a student? Law is a degree where you get out what you put in. Natural talent doesn’t necessarily play a huge role if you’re willing to work. What are your final words to the UniSA Law Students? Law is a tough degree, and you may experience bumps along the road - there is no denying that! However, my one piece of advice would be to maintain a balance. Keep up with your friends, manage your working hours and actually do your readings when you assign yourself study time (Netflix can wait, although the temptation is real!). I wish you all the very best with your law degrees and futures. El Pres signing out.

FEDERAL & STATE FUNDING CUTS:

LEGAL AID MATTERS Words: Mikele Prestia and Georgia McRae

RATIO

Imagine you were accused of a crime, worried about custody of your children or had been discriminated against at work, and yet you had no means to pay a private practitioner to advise or represent you, and did not meet the criteria for free or low cost advice.

This is a reality facing many South Australians following cuts to legal aid funding. The 2016-2017 South Australian Budget did not provide any additional funding to legal assistance services. This funding stagnation comes in the aftermath of the Federal Government cutting the funding of Community Legal Centres (CLCs) in South Australia by 24% in July 2015. With federal cuts projected to reach 29% by 2017, many in the legal

industry are concerned about the impacts this will have on access to justice and social outcomes. Lynn Valentine is a sole practitioner, and has sat on the board of notfor-profit legal organisations including the Women’s Legal Service. She says the cuts represent a “retrograde step” for access to justice in South Australia. Daniel Wasiewicz, at the Riverland Legal Centre,

a solicitor Community agrees.

“Unfortunately, the anticipated funding cuts will ensure a growing threat of inequity in access to justice for many people, not only across regional areas, but across Australia as a whole,” he says.

Currently, there are several options available for those who cannot afford legal representation. They can apply to the Legal Services Commission, which provides legal representation in a limited number of matters; visit a Community Legal Centre; or apply to JusticeNet to attempt to find a pro bono legal practitioner. Other services, such as the UniSA Legal Advice clinic, also assist. However, Lynn Valentine says that it is increasingly easy to fall through the gaps. Daniel agrees that the restrictive means and merits test often results in legal aid funding being refused, so CLCs step in. “CLC’s operate as a ‘gap filling measure’ allowing demographics such as the ‘working poor’ to have unfettered access to justice.” Daniel says. At the moment, however, community legal centres must turn away at least one client for every two they can help, and funding cuts are likely to put them under even more pressure. This means many people are forced to represent themselves in court, an outcome that both Lynn and Daniel say is often unacceptable. “It puts a tremendous amount of pressure on the courts – I’m sure there are no members of the judiciary that think it’s acceptable that there are so many unrepresented people appearing in front of them.” Lynn says. “It slows down the whole process when you have people who don’t know what the law is, what the parameters of decision making are likely to be, and can’t negotiate on their own behalf.” Daniel is also concerned about the possible long-term effects of a lack of representation, especially for people in the country.

“It is an unfortunate consequence, particularly in criminal matters, that we see where defendants were unaware of the potential penalties and risks which resulted from an unrepresented guilty plea. Guilty pleas which result in convictions can affect employment, overseas travel and have a range of other implications. Court imposed fines which could have been mitigated to a smaller amount by an experienced solicitor sends the working poor into spiraling debt which places the livelihood of the defendant and their family at risk. In the country, a loss of licence can often mean loss of work as there are no public transport facilities available. The risk of institutionalisation and suicide increases as people cannot see light at the end of the tunnel.”

“

I’m sure that there are no members of the judiciary that think it’s acceptable that there’s so many unrepresented people appearing front of them.”

Lynn also points to effects on the wider community, especially children who may be affected by inappropriate family law decisions. “As a civil society if we don’t fund our justice system properly, there are huge flow on effects and we find costs everywhere: in the mental health system, in the corrections system and in the education system (if appropriate decisions are not made about parenting and child protection). So there are enormous flow on costs of not servicing the justice system appropriately and financing it appropriately.” She says. Legal aid has been in a steady decline since 1997. Then, the Federal Government

“

I think that winding back legal aid is likely to create a less fair society and I think as a first world country it should be a priority.

was contributing approximately $11.88 per capita for legal aid funding. Today the amount is below $8. This means that Australia provides less than a third of the funding, per capita, of other comparable nations such as the United Kingdom. Furthermore, legal aid accounts for just 0.015% of Government expenditure – in fact, the Federal Government spends more on its own legal costs than it provides for citizens facing legal problems. The South Australian State Government has also failed to provide further funding to legal services. The State Government now provides 19.5% of funding, compared to other states who provide, on average, 50% of the funding for their legal services.

RATIO

The dwindling funding paired with rising costs of litigation means that many Australians, from all backgrounds, have decreasing access to justice.

Daniel says it is a misconception that people who seek assistance from CLCs are solely from lower socio-economic backgrounds. “Right now there is a crisis in affordable legal help for disadvantaged people in the community, but also for ‘ordinary Australians’. CLC’s operate in a way that anybody who has a genuine query about a legal matter can book

an appointment to speak to a solicitor. While many feel they will not require the services of a solicitor in their lifetime (and chances are, many do not), there may come a time where you are party to a dispute or issue and are in need of assistance but are unable to afford the services of a private solicitor. This is where the services of CLC’s are an invaluable asset to the community.” Lynn agrees that society as a whole benefits from a well-funded legal service. This is in line with PriceWaterhouseCoopers who estimates that for every $1 spent, there is a return of at least $1.60 in benefits to the community. Other studies have suggested it is as high as $18. “I think that winding back legal aid is likely to create a less fair society and I think as a first world country it should be a priority. We should be able to demonstrate that we have one of the best legal systems and some of the greatest access to justice, so I think it’s a very retrograde step to be winding back legal aid.” Lynn says. Concerned legal practitioners are calling upon the Federal and State Governments to immediately increase funding to legal services by $350 million. For more info visit: www.legalidmatters.com.au

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The INSANITY DEFENCE

ON TRIAL

RATIO

Words: Shannon Guerin

It’s a debate that divides people, and has since the Roman Empire – is the insanity defence practical to have? It’s been argued that the mental competence defence is becoming overused, and is no longer appropriate to have. Should South Australia abolish it?

pleading not guilty to murdering his father, the former Adelaide Crows coach Phil Walsh, due to mental incompetence. If the plea is allowed, rather than facing trial for murder and potential spending life behind bars, he will spend his time in a mental health centre.

Under South Australian legislation, section 269C of the Criminal Law Consolidation Act 1935 (SA) states that “a person is mentally incompetent to commit an office if, at the time of the conduct... does not know the nature and quality of the conduct, or does not know that the conduct is wrong, or is unable to control the conduct.” The law recognises under section 269H that an accused person is mentally unfit to stand trial if they are mentally incompetent.

It isn’t the first time the defence has been used. In 2010 Vicky Wagner stabbed her Mother 146 times and used the defence; Catherine Pallin drowned her two-year-old daughter and relied upon it; and so did Nicholas Chattaway who attacked both of his parents with four knives and tongs because he thought his parents were aliens.

The insanty defence can be seen as South Australia’s “get out of jail free” card, because if all the elements are proven, the case can be acquitted and see the accused spending their life having avoided jail time. This issue has been highlighted in the media more recently when Cy Walsh

A reason to abolish the defence is because it is not feasible to prove that someone was mentally incompetent at the time of the event. It is hard to prove, especially if someone does not have a prior record. What about those accused that were mentally incompetent at the time, but make a full recovery, and mentally able to stand trial, however due to being mentally incompetent “at the

time of the conduct”, they are eligible to use this defence? The law also states that the accused does not know that the conduct is wrong at the time of the event, but how can you be sure that they didn’t? It’s like trying to prove that ghosts exist. Can it ever actually be done? Hence, this defence has flaws. It is arguable that everyone should be held responsible for their actions, regardless of mental capacity. You take a life, then you should be punished. What about involuntary intoxication when your drink is spiked and a crime is committed afterwards? They were unable to control the conduct, and it was not by choice. Is it fair tif they are punished for it anyway? Surely the same could apply to the insanity defence. Even if initially locked in a psychiatric centre, it’s possible that they will get released at some point in their life, therefore never actually serving the punishment for a crime that they committed. Their life is spared, even though they took a life. Not to forget, that it increases court costs, and requires hiring more specialists, but that is another issue. On the other hand, isn’t the law there for a reason? To help treat those who need it and to be fair? The insanity defence is a way to help people get reformed, rather than ignoring the issues behind bars, and where actual help is very limited. We aren’t in the 1900s, and I’d like to think that Australia has progressed from some of the stories we hear about Glenside, and people incorrectly being locked up. They aren’t essentially just getting away with it, when being locked up in a psychiatric unit for life can be just as daunting. Unfortunately, not everyone that pleads insanity is actually insane. It can be used as an attempt to escape punishment. Even though it might feel to many that the insanity defence is being easily

abused, unbeknown to many, the insanity defence has many checks, is rarely successful, and extremely difficult to prove. At the end of the day, to plead insanity, the accused is still admitting that they committed the crime. They are admitting to themselves, their loved ones, the court and the community that they did the crime. Unfortunately, life isn’t Monopoly (as much as I would like to have my four hotels on Mayfair!) and get out of jail free cards don’t exist. Take a step back. It wouldn’t be fair just to abolish this defence for people who really need it. It would be brutal and unfair to not be able to take into one’s mental ability into consideration. Sometimes sending people directly to jail isn’t an answer. Not only does it congest our cells, but justice should be about reforming and helping people getting back into society. Therefore, the mental competence defence does need to exist for those who genuinely need it, and without a doubt the legal system needs to be there to enforce laws, and give punishments for crimes when they are committed deliberately. Perhaps it is time to address the issue and applying suitable changes so the defence isn’t so easily “abused”. The law could be updated with medical knowledge by increasing legislative clarification on how to approach the elements, or amending it so the punishment served being detained in a psychiatric centre is the same as the time imposed in prison if sentenced to the offence. Another option is adopting a Mental Health Act, similar to New South Wales which goes into detail or creating a Mental Health Review Board so that these people are not being released to the public without serious assessment, and are not a threat to society. What should the future be for the insanity defence? Only time will tell, but one thing is for sure, this isn’t the last you will hear of this debate.

CONCUSSION LITIGATION IN

THE AFL

RATIO

Pic: Mark Ehr

Words: Luke Taylor

In 2013, former AFL superstar and two-time Brownlow medallist Greg Williams revealed that he could not remember large periods of his playing days. He was found to be showing symptoms of chronic traumatic encephalopathy (CTE), a condition commonly found in athletes who have experienced head knocks in contact sport. However, this condition can only be diagnosed after a post-mortem brain scan. Williams, a notoriously hard player, believes he is exhibiting these symptoms due to the countless concussions that he suffered during his 250 game career. As a result of this, he has sought to open proceedings against the AFL for what he believes to be a breach of their duty of care. This duty is based on the failure of the AFL to adequately address the foreseeable risk of brain injuries which may result from multiple concussions. CTE is disease,

a degenerative brain caused by repeated

concussions or other brain trauma, which is shown to lead to early on-set dementia, memory loss and depression. Williams and six other former players were shown in a study to be exhibiting symptoms of the condition, highlighting that the AFL had not adequately informed players of the risks associated with the sport. This highlights an ongoing problem in the sporting world, as administrators are only just becoming aware of the long term effects that multiple concussions can have on an athlete. The growing concerns surrounding this issue has prompted governing bodies to devise strategies to better protect players from injury. In particular, this issue has been given a lot of media coverage in America, due to the multitude of brain problems suffered by former National Football League players. For many players, the symptoms of these problems have only become apparent since their retirement.

These problems have many devastating consequences, such as having to retire prematurely or various health problems. However, the affects can lead to more tragic circumstances, such as in the case of professional footballer Jovan Belcher. The depression caused by multiple concussions in his career led to him at the age of 25 killing his girlfriend and then himself in the presence of his coach and general manager. Post mortem autopsy showed that he was suffering from CTE. Situations such as these led to over four thousand former players and families of deceased players to take legal action against the NFL in 2012 seeking damages for what they believed was a breach of the NFLâ&#x20AC;&#x2122;s duty of care. They argued the NFL was negligent due to their lack of protection for players and that they were aware of the dangers concussion posed yet decided to cover them up. This poses an interesting question as to whether or not an action by Williams and the other players that have been shown to exhibit the symptoms against the AFL would be successful based on similar action taken by football players in America? Back in April this year the American appeal court affirmed the concussion settlement brought forward by over a thousand former players entitling those who were suffering CTE to a maximum settlement of 5 million dollars. The original court case was settled due to professional research which was able to link multiple concussions from sport to CTE and other degenerative brain conditions in later life. The NFL on the basis of this information agreed with the former players to settle as there was clear fault on their part and they would be forced to pay much more if the case was to go to trial. As well as the initial settlement, the NFL concussion

settlement fund was also established. This has allowed former players who are suffering from the effects of concussion that were not part of the original lawsuit and modern players who may in the future suffer the same conditions an opportunity to receive compensation for their injuries. Based on the symptoms Williams is showing, it appears that the concussions he suffered during his playing career has caused irreparable damage to his brain. While it cannot be diagnosed as CTE yet, the fact is he has suffered some degree of brain damage that he will be forced to live with for the rest of his life. This can be attributed to the lack of concussion protocol the AFL had in place when he played, as back then players were forced to play after head trauma as opposed to recently where players are now required to undergo numerous tests before they are able to continue and are often required to miss a game. In my opinion it is because of this that Williams should be entitled to compensation similar to the players in the NFL case as there was a clear breach of duty by the governing body to protect the health of their players. Any action Williams may take against the AFL should be successful as the non-existent concussion protocol in that era led to Williams suffering the multiple head injuries that has resulted in the state he is in now. It would be in the best interest of the AFL to establish a compensation fund similar to the NFL to prevent more of these law suits. In the long run this will save them money and time in court but will also give former players the chance to be compensated for the injuries they suffered due to the lack of protection they were afforded by the AFL.

HOSPITALITY & WAGE DEDUCTIONS-

KNOW YOUR RIGHTS

RATIO

Pic: Alper Cugun

Words: Stephen Ranieri

Young workers often find themselves an easy target of exploitation in the workplace. Their lack of knowledge of employment rights and entitlements, acquiescence of terms and conditions below minimum standards, transient nature of the (usually casual) work undertaken, and strong work ethic often make them vulnerable in the workplace. This article provides a brief overview of the law as it pertains to deductions from an employee’s wages. In 2009, in reliance on the corporations power,1 state referrals of constitutional power,2

and a combination of other legislative powers,3 Australia strengthened its federal industrial relations system; expressed in the governing legislation, the Fair Work Act 2009 (Cth) (‘FW Act’). The FW Act provides for the minimum standards of employment, expressed as the National Employment Standards (‘NES’).4 Through the award modernisation process, as of 1 January 2010, there are 122 industry and occupation awards that cover most people working in Australia.5 A modern award applies to an employee, if:

1. They come within the definition of the modern award’s coverage clause; 2. The modern award is in operation; 3. No other provision of the FW Act provides that the modern award does not apply; and 4. A registered enterprise agreement does not apply to the employee.6 Common examples of modern awards as applicable to young workers include the Fast Food Industry Award 2010 (MA000003), the General Retail Industry Award 2010 (MA000004) and the Hospitality Industry (General) Award 2010 (MA000009).7 Award coverage is provided in clause 4 of each example, and the relevant employment classifications are contained within schedule B of each modern award. Courts have long held that an award should be read to favour a plain and ordinary interpretation, and that award terms are to be read in the context of how the award operates as a whole and the nature of the industry concerned.8 Section 323 of the FW Act provides that an employee must be paid ‘employee amounts’ in relation to the performance of work in full by one of the prescribed methods, and at least monthly.9 A contravention of s 323 is a civil remedy provision attracting a maximum penalty of up to $10,800 for an individual;10 and up to $54,000 for a body corporate.11 The requirement to be paid in accordance with s 323 includes any permitted deductions in s 324 of the FW Act. Section 324(1) provides that an employer may deduct monies from

an amount payable to an employee only in the following circumstances: 1. the deduction is authorised in writing by the employee and is principally for the employee’s benefit; 2. the deduction is authorised by the employee in accordance with an enterprise agreement; 3. the deduction is authorised by or under a modern award or a Fair Work Commission order; or 4. the deduction is authorised by or under a law of the Commonwealth, a State or a Territory, or an order of a court.12 Plainly enough, the circumstances when an employer can deduct amounts from an employee’s wages lawfully are limited. Common examples of lawful deductions include salary sacrifice arrangements or additional superannuation contributions. As an example, young workers in the hospitality industry often face a circumstance where their employer deducts till shortages from their wages. Such deductions do not comply with the requirements in s 324 above, and would, therefore, contravene s 323 of the FW Act.13 If an employee suspects that their employer is not complying with their obligations, they should always try and discuss the issue with their employer directly and try to resolve matters informally before taking any further action. In fact, all modern awards contain a ‘dispute resolution’ clause which requires an employee to raise any grievance with their employer directly, in the first instance. For example, clause 9.1 of the Hospitality Industry (General)

Award 2010 provides that: In the event of a dispute in relation to a matter about this award, or in relation to the NES, in the first instance the parties must attempt to resolve the matter at the workplace by discussions between the employee or employees concerned and the relevant supervisor. If such discussions do not resolve the dispute, the parties will endeavour to resolve the dispute in a timely manner by discussions between the employee or employees concerned and more senior levels of management as appropriate. Clause 9.2 of the Hospitality Industry (General) Award 2010 provides that an employee may refer the dispute to the Fair Work Commission, only if, â&#x20AC;&#x2DC;all appropriate steps under clause 9.1 have been takenâ&#x20AC;&#x2122;. Plainly, this facilitates the early resolution of workplace disputes, including those potentially involving unlawful deductions. Some contraventions may arise from a genuine oversight by employer or from simply not knowing what the law is on the subject. An employer should always be given the opportunity to rectify matters informally in the first instance.

References 1

Commonwealth Constitution s 51(xx).

Ibid s 51 (xxxvii).

Namely, the trade and commerce power (s 51 (x)), and external affairs power (s 51 (xxix)), for example. See also Transport Workers Union of Australia v Coles Supermarkets Australia Pty Ltd (2014) 245 IR 449, 454 [13]. 3

Fair Work Act 2009 (Cth) pt 2.2.

Ibid pt 2.3.

Fair Work Act 2009 (Cth) ss 47 and 57.

A full list of modern awards is available on the Fair Work Commission website https://www.fwc.gov.au/awards-andagreements/awards/find-award. 7

Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241, 270-1 [96] (Kirby J) citing Kucks v CSR Ltd (1996) 66 IR 182, 184, Transport Workers Union of Australia v Coles Supermarkets Australia Pty Ltd (2014) 245 IR 449, 445 [22]. 8

Further information about workplace rights and entitlements can be found on the Fair Work Ombudsman website (www.fairwork.gov.au), the Fair Work Commission Website (www.fwc.gov. au). Young workers may also seek legal assistance from organisations including community legal centres (www.saccls. org.au), the Legal Services Commission of South Australia (www.lsc.sa.gov.au), and the Young Workers Legal Service (www.ywls.org.au).

Fair Work Act 2009 (Cth) s 323(2). Crimes Act 1914 (Cth) s 4AA.

Ibid, Fair Work Act 2009 (Cth) ss 546(1)(2) and 539(2) item 10. 11

Fair Work Act 2009 (Cth) s 324(1)(a)-(d).

Ibid ss 323 and 324.

Law & Lattes:

CROSS EXAMINATION

IVAN SHEARER, ADJUNCT PROFESSOR OF LAW Interview: Georgia McRae & Carly Austin generate the 200 mile economic exclusion zone - only the 12 mile border of the territorial sea. China had tried to convert [rocks to islands] by adding human habitation [such as] air strips, however this has always been considered invalid under international law.

For this edition of Law & Lattes, we spoke with Adjunct Professor Ivan Shearer about the recent decision regarding the South China Sea dispute, and his illustrious career in international law. Thank you so much for your time today. For those who are not aware, what are some of the key issues in the South China Sea dispute which has recently been arbitrated in the Hague? The main disputes concerned the validity of a claim by China to territory (rocks, islands, etc) within the ring of nine dash line, which also impacts on neighbours including the Philippines, Malaysia, Vietnam and Brunei. Under the law of the sea, rocks can’t

What the tribunal has decided is that the 1989 UN Convention on the Law of the Sea abolishes any such claims. In other words, the Law of the Sea overwrote any such rights, which is a blow to China’s position [that they have a historical claim]. Another issue is freedom of navigation by surface vessels and military aircraft (civilian aircrafts are covered by a different regime). China was saying that you can’t fly over their airspace without permission, [and that they] wanted to create an ADIZ (Air Defense Identification Zone) which would mean every vessel will have to either alert or ask for permission. Now there’s been some confusion about the name of the court. It is not the permanent court in the Hague, it is an ad hoc tribunal, not associated with the International Court of Justice. I should know, I’ve sat on 5 of them! How has the judgment been received by China and other

nations? China has made a specific threat to Australia that if it supports the judgment then they will regard it as an unfriendly act. This was directed at Julia Bishop who they said had made provocative statements about the tribunal – I’m not sure what is provocative about saying a properly constituted tribunal had made a decision! So how does this affect Australia? Well, the Labor senator Stephen Conroy has being making statements about how we should support the US and freedom. Turnbull has been more reserved, and I think that’s right - we don’t want to blunder in there. China has said Australia can expect retaliation, but I don’t think they mean armed, maybe economic. [In regards to China] I have never known a country to be so abusive. They have accused the tribunal of being of bad faith, aligned with the US and a fake court. China has boycotted [but] the tribunal was properly constituted by the Philippines under the Convention on the Law of the Seas. Under that convention there is a clear requirement to submit to arbitration. This is what China signed up to, so they are clearly in breach by not doing so. So long term it’s very serious when a country flouts its obligations and acts like they are above the law. The US will be thrilled by this as they have been concerned about freedom of navigation. They feel they must defend this world wide as the US is a super power and see their role as defending this freedom. However, China still wants the ADIZ and the US is dead against even notification – so although they’ve said they’ll negotiate, that may be difficult.

The prospect of armed conflict between China and the US is too horrible to think about – but I don’t see either side backing down. There would need to be some kind of cooling off period for both sides, I think [before negotiations were to happen]. If it sounds like the law is pretty decisive on this issue, do you have any insight into why China would continue pursuing this claim? I don’t have a fully formed view on that. It’s partly historical – China was trampled on by the rest of the world and now it is a superpower and it believes it has special rights. It also feels vulnerable and open to attack – [so] they are taking protective measures. The irony is they’re picking a fight. Also China is a proud country – maybe it has something to do with the personality of the current Prime Minister Li Keqiang, he is an assertive nationalistic leader, but he has his own enemies too – so his position is not a sure thing – maybe he’s trying to consolidate power by being aggressive. On to something a bit different – you’ve been teaching for several decades now and in a few different countries. What is it about teaching that has kept you engaged after all of this time? I fell into it by accident but once started I was hooked. It’s not just teaching, although I always put that first because I want to give help to the upcoming generation of lawyers. I remember at law school, I had a great lecturer. One day I said to him ‘if I can get to that stage - that’s what I’m aiming for’. I told him, and he was angry – [he said] ‘you think it is easy do you? You think I just give a lecture? I’m always nervous

before classes, I can’t concentrate before and I need to wind down after.’ I’ve never forgotten that and [have] tried to approach lecturing that way. I’ve never given the same lecture twice – I have notes of course but they’re just talking points.

it’s a broad skill that helps you to structure an argument.

So what advice would you give to current law students to ensure they get the most out of their university experience?

I sat on that committee for 8 years and it was a wonderful experience. I must admit my experience was in international law, not heavily focused on human rights; more military. At law school and in my career to that point I had been more about armed conflict, the use of force, the law of the sea, etc as I was an officer in the navy and gave courses to naval officers.

If they’re doing law and maybe something else, keep your interests broad. Be open to possibilities that you hadn’t though of before [because] these days its not possible to assume that doing law you will get a career in it. It wasn’t like that in my day! [Back then] you didn’t look for jobs, they came to you! Now it’s the reverse, really good students will make 30 – 40 applications, so you have to be prepared to do other things. We’re reaching where continental Europe is; I was in Germany and I asked what percentage of students who study law will practice, and it was about 7%. So law is increasingly being regarded as a general education that helps people find professional opportunities anywhere. A lot of different companies favour a person with law qualifications [because] it helps with problem solving, etc. Also make friends, as this will help you not only personally but also professionally when it comes to finding a job! In my day at university we had so many societies and things, I don’t think they are as popular now because students have so many other commitments outside university. So you asked what advice I would give. Aside from keep your horizons broad, participate in dispute resolution. It doesn’t mean you’ll become a barrister and then chief justice, though maybe you will, but

You also sat on the United Nations Human Rights Committee. How was that experience?

So when I got a call from Alexander Downer who asked me if I would be willing to be the nominee for the committee, I said, aren’t there other people in Australia who have a more human rights background? He said we don’t want a human rights enthusiast, we want someone with broad knowledge. He also said if you don’t accept we won’t nominate anyone, so I told him I’d think about it. Well, I accepted and I ended up Vice President of the committee for my last two years and I think I made a contribution. I wrote some majority judgments, some dissenting opinions, and I think I was respected because initially some people wondered if I should have been appointed but those reservations evaporated. So I came to the committee by accident but I came to enjoy it very much and I feel as though I made a contribution.

AURORA NATIVE TITLE PROJECT:

A GREAT EXPERIENCE

IN CHAMBERS

Words: Henry Koehne

It would not come to the surprise of most that the higgidy-jarble of a lawyer’s yarble can be confusing and unkind. This is perhaps best known by the people caught in the midst of litigation; the people whose livelihood depends on a man or woman in a funny grey wig saying words and using phrases designed to confound. Yet any opportunity to work with our profession’s most skilled operators is an opportunity well taken. For me, this was barrister Andrew Collett AM as part of the Aurora Internship Program. Andrew is a highly regarded and Order of Australia awarded barrister practicing in matters ranging from personal injury and workers compensation to criminal and administrative issues. He is also one of our country’s great native title lawyers, recognised, amongst other things, for his successful suit against the British Government after the Maralinga nuclear tests between 1956 and 1963. Although I had known Andrew prior to my 4 week placement, the opportunity to watch him work in my own small

capacity, assisting him in a busy period of trials was an entirely new experience and undoubtedly the highlight of my tenure as a law student. What follows is an attempt to flesh out some of what I learnt in this period. Life as a barrister provides a combination of nuanced complexity in questions of law, some fascinating characters and a fast paced, relentless work ethic to pull it all together. At times I would be working on 4 or 5 matters each day, jumping from one brief to the next like a frantic child on Christmas morning. What I didn’t expect was that opening a crisp new brief could provide the same enjoyment as unwrapping FIFA 16 at Christmas. Doing so opens you up to the intimately heart-wrenching, hilarious and sometimes utterly obscure lives of real people. You learn the struggles of a widow whose husband was killed in the backseat of a car and go into bat against the insurance company attempting to deny culpability on the basis that he

wasn’t wearing a seatbelt. You engage with plight of the parents whose foster children were taken for unsubstantiated claims of child abuse and wonder why, even though the question is how. You scour over the scrawled notes of a psychiatrist to find chinks in the armor that is the opposition defence. You sit and wonder how your own life would look condensed into four or five hundred pages of interviews, reports and statements. The pursuit of justice is an ugly thing because one’s vulnerabilities are displayed for all to see. It is certainly a strange feeling walking into a meeting knowing things about a client who doesn’t even know your name. Especially so when the material is so inherently private and subject to contention. This point is one of the obvious distinctions between life as a law student and life as a lawyer. As a student the facts are never in question. Of course it just wouldn’t do to have students attend a torts examination in which the question is whether A caused injury to B at work, however A asserts the impossibility of this because A was enjoying a steak dinner at home at the time of the alleged incident. I suspect this would not be a very compelling exam question as one would first have to determine whether, in fact, A was enjoying a steak dinner or at work causing industrial chaos. If this were at trial, however, determining the exact location of A is critical to the outcome of the case. While this is a very simple construction it’s true that the facts relating to where someone was at a particular time, what they said at a particular point or whether they are actually injured to the requisite sufficiency are facts that aren’t always clear before trial. In these instances the outcome often comes down to the credibility of a witness, how persuasive counsel is, or even how sympathetic a particular judge is to a particular cause. All these issues are thrown in the melting

pot from which, hopefully, one can serve up a cup of steaming hot justice. The great joy of working as a barrister is also part of what makes it a daunting task. You are the last line of defence. The outcome of the case, the result of hundreds of man-hours, countless meetings, research and discussion is concentrated on you in a final crescendo. The financial burden for your client can be crippling if you fail. The capacity for your client to support their family if you win, an unrivalled catharsis. The joy is in transcending pressure and getting the outcome intended to ensure your client can return to their lives happy. Ultimately, this is the true result of winning, however the process of litigation rarely leaves participants free from harm. This experience has taught me a lot. First, a detailed chronology is the essential backbone for running a good case. Secondly, the art of good cross-examination manifests in one who is patient, cunning, charming and experienced. Thirdly, good relationships with other practitioners can make your life much easier. Finally and perhaps most importantly, a career at the bar is no walk in the park, but representing those who need it most at the time it matters can provide an unparalleled sense of peace in a world constantly at odds. I would like to thank the team at The Aurora Project for providing me with such a unique opportunity and I encourage students and graduates to apply for the Aurora Internship in the future. More information on the Aurora Internship Program can be found on the Aurora website at: http://www.auroraproject. com.au/aboutapplyinginternship Applications for the summer 2016/17 round will be open on-line from 1 August through 26 August.

LEFT ME WONTON MORE:

2016 CHINA TRIP

IN CHAMBERS

Words: Antonella Rodriguez

In April 2016 Jordan Moulds and I joined a contingent from Flinders University to travel to Shanghai, China to study Chinese Law and Legal Systems at the East China University of Political Science and Law.

class on China and the World Trade Organisation was led by a professor who was currently working as an arbitrator in the WTO and had completed her PhD in France (published in English, French and Chinese!).

During the 2 week study tour we took classes from 9am â&#x20AC;&#x201C; 4pm most days, but also explored Shanghai, went on guided tours, got sick from street food, made hard bargains in the markets, and somehow found the time to sleep! The classes gave a broad overview of the law in many areas, each day bringing new lecturers and new concepts. We covered areas of law like contract, criminal law and procedure, corporations, trade, and labour law.

On our tours we visited the Shanghai World Financial Centre which is 492 meters tall and has a glass floor you can walk on (not for the weak of stomach like myself), Yuyuan Garden, an acrobatics show and had a traditional-style lecture sitting on mats in a room at a law firm. My favourite place to go was across the road from the University Campus in Zhongshan Park where you would see large groups of people dancing, practicing martial arts, flying drones, playing yo-ho diablo, and generally just enjoying themselves. Despite how busy and crowded the park was, it was always comfortable to stroll

We learned about the history of Chinaâ&#x20AC;&#x2122;s legal system, and examined the current state of the law. Our

through and people watch. We met with students from the University for events like “English Corner” where we spoke to local students who were part of the English club, played table tennis and billiards, and then went out for dinner at a local restaurant.

on studying abroad, get in touch with the Global Experience team: http:// www.unisa.edu.au/student-life/globalopportunities/

We also had the opportunity to meet with local students who work for the free legal advice service that the university offers. This is run in a similar fashion to the UniSA legal advice clinic, with members of the public able to come in and receive help from the students under the supervision of a practicing lawyer. When we visited the clinic, I noticed that all of the interviews were taking place in one open area with clients sitting almost side by side at the desks which was a remarkable difference. It was explained to me that the files the students keep are confidential, but in the interviews you only worry about your own problem, not what your neighbour’s problem is. I highly recommend taking time to travel abroad to study as part of your degree, it is an invaluable experience and also a fantastic resume booster! There are scholarships available – this trip was funded in part by the UniSA Business School Mobility Grant and the New Colombo Plan Scholarship but there is also an option to take an OSHelp loan as well. For more information

Jordan and I at the Intermediate People’s Court in Shanghai, sitting in the room where young offenders are dealt with.

MY EXPERIENCE AS A

YOUTH PARLIAMENTARIAN Words: Murtaza Dostdar

IN CHAMBERS

Freedom of speech is an internationally entrenched right under Article 19 of The Universal Declaration of Human Rights, however, many countries do not appropriately endorse this right. I am a Hazara born in Afghanistan, a country which barely provides any opportunity for freedom of speech.

If someone is voicing out for any of their fundamental rights there is a likely chance that they will be prosecuted under local law and even shunned by the general public. I am now a citizen of Australia where anyone can speak and express their opinions without any hesitation. Afghanistan is slowly improving and I am hopeful that one day it will follow a path to ‘true freedom’. Living in Australia whereby opportunities to voice your own opinion on contemporary issues come often. A close friend referred me to Youth Parliament where I was given such an opportunity. For me to engage in this program particularly among the younger generation is a privilege and I am glad I participated. I was surprised by the span of youth who came together from all walks of life to debate the topics on recognised issues within the South Australian society. Throughout the week all participants were divided among the House of Assembly and the Legislative Council taking on the role of the Government and Opposition. We debate whether certain laws were appropriate in improving the quality of life here in

South Australia.

Each day the two houses debated different Bills, as a result some Bills were passed by the particular house by majority and some unfortunately did not. The Bill topics ranged from antibullying and voluntary euthanasia to the ethics of organ transplants. I am pleased that the organ transplant Bill that my team represented was passed by majority in both houses of parliament. The debates were filled with passion and deeply felt emotions making the atmosphere authentic. I can truly say I have been to parliament now. I am hopeful that many more intelligent youths will take the opportunity to have their say in today’s domestic affairs by participating in Youth Parliament. This can often be where the journey of a young parliamentarian begins. That’s a tick off the bucket list! Murtaza Dostdar Law and International Undergraduate

Relations

ADVOCACY ON THE RISE

UNISA MOOTING Words: Travis Shueard

This year, UniSA has an unprecedented amount of teams competing in national mooting competitions. Students with a range of experience, from first year to final, are heading abroad to compete with the best and see what other law schools throughout Australia have to offer. In April, Travis Shueard, Seamus Brand and Kelsey Tonkin competed in the challenging Ashurst Australian Private Law Moot Competition at UNSW. This competition focused on equity and corporation law, and the UniSA team made it to the semifinals, losing to the eventual grand final winners, UNSW, by a slim margin. UNSW won this respected competition, with Singapore Management University placing as runner up.

Currently, there are multiple teams of UniSA students venturing abroad to experience these competitions, and listed below youâ&#x20AC;&#x2122;ll find a brief snapshot of each team and the moot that they are competing in.

First off the rank is the Victoria University Kirby Contract Law Moot Team. Consisting of Patrick Tyson, Leo Coldbeck-Shackley, Alyse Dickson and Kelsey Tonkin. This team will compete in this prestigious competition in Melbourne. Last year 30 teams competed, with about 100 students altogether taking part. This is the first team from UniSA to compete in this moot, and this team of academic high flyers is going to give 100%. Running since 2011 the VU Kirby Contract Law Moot is the largest moot court competition in Australia. It is a fixture in the Victorian legal calendar and has strong support from the County Court of Victoria, members of the Victorian Bar, various law firms and practical legal training institutions. Often, the winners of this competition will represent their university in international competitions, such as the Willem C. Vis International Commercial Arbitration Moot or the Jessup International Law Moot.

Team Captain Patrick Tyson explains why he and his team chose this particular moot: “At the heart of our team’s decision to enter the 2016 Kirby Contract Law Moot Competition, the largest moot competition in Australia, was a deep interest in the law of contract. We also anticipate that the challenges presented by participation in the competition will give us an opportunity to improve our written and oral advocacy skills, develop an even greater understanding and appreciation for the law of contract, and an ability to manage stressful team projects.” Patrick also recommends to future students considering mooting “[they] should be aware competitions will place an extra burden on your academic studies and social life and can be financially burdensome (until university funding is paid, if even granted). Making sure all team members are equally committed to the competition is also a fundamental factor that needs to be openly addressed before registering.

IN CHAMBERS

Patrick, Leo, Alyse and Kelsey will compete in Melbourne at Victoria University on the 26th, 27th, 28th and 29th of September. Next we have the team of Tom C-Jones, Ali Jahangiri and Kate Roder who are travelling to Queensland University of Technology in Brisbane to compete in the QUT Torts Law Moot. This moot is traditionally aimed at first-years and first time mooters, and it is fantastic to see new students taking on the challenge of competitive mooting so early in their legal education.

Tom, Ali and Kate will compete at QUT on the 1st, 2nd, 3rd, 4th and 5th of August. The Melbourne University Law School Sir Harry Gibbs Constitutional Law Moot is a notoriously difficult competition, and the team of Salsabil Hariz, Cath Mwikya and Hannah Thomas are keen to give it their all for UniSA. All three mooters have a passion for constitutional law, and both Cath and Hannah have already had mooting experience, winning the Lipman Karas USALSA Mooting Competition and will be representing UniSA at the ALSA Moot. Salsabil says the reason for her choosing this moot was due to her love of constitutional law, reading and creative solutions to challenges: “My fascination with constitutional law stretched to my love for books. It is amazing that a book has the power to make such vast changes or even hinder necessary changes. When you study constitutional law, especially when you do your arguments for the moot, you get to think outside the box. Personally, sometimes I force myself to think outside the box so much that I forget that a box even exists. That is not a good thing. Boxes are nice. Don’t do that. Although, if you are like me, you will probably do that.” It is important that law students remember why they are in law school in the first place, and take the opportunities to moot as they present themselves. Speaking court etiquette in a perfectly tailored suit – now doesn’t that sound a little endearing? If you are

freaking out even at the thought of public speaking, just wait until you do your first moot - for a class or a competition. Trust me, the ice will break. Look at yourself in the mirror and call yourself a King/Queen, throw your shoulders back and go YEAH! I CAN DO THIS! I WILL DO THE THING! THE MOOT THING!” Thank you Salsabil for that slightly eclectic show of encouragement. Salsabil, Cath and Hannah will compete at Melbourne University on 24th, 25th and 26th September. Finally, Seamus Brand, Travis Shueard and Franciska Sita will be competing in the Australian Administrative Tribunal (AAT) Moot. This moot focuses on administrative law in the AAT. Unlike other moots, this moot runs over the course of several months and allows only a week to prepare submissions. The final round is held in Canberra, with Kerr J presiding. Seamus Brand, winner of the UNSW Ashurst Australian Private Law Moot’s prize for Best Speaker, believes that learning advocacy skills early in your studies is pivotal to success: “UniSA offers you the chance to get one up over the graduates from other universities via its focus on practical learning - take the opportunity to moot while you can.”

Seamus, Travis and Franciska will compete in this moot at the Adelaide AAT registry on the 2nd, 3rd and 4th of August. If you see these students around the campus, have a chat to them about their mooting experience and show them some support. It is great to see UniSA students start to take up the challenge of national mooting, and we eagerly await the results of these teams. Mooting is a vital part of your legal education; it teaches you fundamental oral advocacy skills, legal analysis, finding solutions under challenging conditions, research, teamwork, leadership and the value of perseverance. Mooting looks amazing on your CV and is often one of the first things interviewers will comment on. If you have any questions about mooting, upcoming competitions, etc., make sure to ask your teachers - most likely there will be a moot in an area of law that you are interested in. Also, USALSA hold both the First Year Moot and the Open Competitions each year perfect opportunity to get involved. Make sure to keep an eye on the USALSA Facebook page for updates on the teams as they compete.

HELLO FROM

CARLETON LAW SCHOOL

OBITER DICTUM

Words: Shani MacIsaac, Carleton Law School

Once upon a time in a country far away… there was an article full of clichés and wishful thinking. Sadly, this is that article.

2. Drop bears are more terrifying than Dingos 3. There is always time for a beer with a ‘mate’

Before we begin, let me introduce myself, I am a 5th year Carleton University student studying law concurrently with teaching English as a second language degree. I am president of the Carleton Law and Legal Studies Society and I had the privilege of going on exchange and attending the University of South Australia Law School in 2015.

Our story begins with me and my best friend attending our first lecture during marathon Monday. Marathon Monday means you drink from sun up to sun up, but this was a new country, our first day… we could not afford to make a bad first impression! Naturally, we made a friend and found ourselves at Westbar at 11am on a Monday with our entire class. To say the very least, that was my favourite class.

This was the trip of a life time for me, and exceeded my every expectation. While classes were almost exactly the same as they are here at home, the Aussie accent made attending class a lot easier. I took 3 classes during my semester away and I learned 3 important lessons: 1. Having a living tree doctrine of rights as opposed to an entrenched one, is just as effective

I had to take introduction to Australian Law, and wow… you guys have a very similar yet radically different system over there! The focus of my undergraduate degree is on transnational law and human rights (law school in Canada is post graduate so you have to complete an undergraduate degree first) so for me to learn Australia does not have a Charter of Rights and Freedoms was

“

Things I learnt in Australia: 1. Having a living tree doctrine of rights as opposed to an entrenched one, is just as effective 2. Drop bears are more terrifying than Dingos 3. There is always time for a beer with a ‘mate’

shocking and I was curious as to what is a definable right in your country. After 10 weeks of class and an exam that almost killed me I can honestly say that your way works and picks up some of the slack that my Charter creates. The idea of a growing precedent that can reflect societal values of the immediate time is something I think our modern community can benefit from (but that is another story). The more exciting story lies in the all the Australian things I got to do! Hold koalas, touch kangaroos, see crocodiles, swim at the Great Barrier Reef, see the opera house, go to an AFL game, eat vegemite, and avoid snakes, spiders and blue ringed octopi. As someone growing up on the other side of the world these little Aussie things were only a dream. Now that, the dream has come true I want to encourage all of you to come try the Canadian dream! We have excellent beer, food, people and animals. Just imagine how great it would be to ride a moose to the Stanley cup final, while eating maple bacon, sipping an Ice Capp with poutine packed for intermission?! I know that most of you have no idea what half those things are, but I can assure you that they are proudly Canadian. My only concern and upset was with my lovely friends telling me about the horrors of the drop bear… those mythical bad guys gave me a good scare. I am so not impressed with the lies I was fed. But this takes us to the final and most

important lesson I learned while away and one that I will carry with me, is that there is always time for a beer with mates. My professors and classmates showed me that despite everything that is going on, you can always find time to make a friend. In my various years at school I have been stressed out and my patience maxed out: but my time in Adelaide taught me that some down time with a friend is the best medicine. It helped cure my homesickness, my exam stress, my heartache and when I came back to Canada it cured my withdrawal. My trip to UNISA was amazing because the people I met there made my trip. The friends I made I will cherish forever and because of Facebook I can stalk them when I please. With that in mind I encourage all you readers to go on an adventure, whether it be big or small and make a memory that will last a lifetime.

WHEN YOUR CLIENT

IS REALLY A PIG!

OBITER DICTUM

Words: Sonia Griesbach

A pig convicted of murder and sentenced to death by hanging, a donkey exonerated for immorality, sparrows prosecuted for chattering in church, caterpillars excommunicated and banished from a Diocese, animal trails occurred with frequent regularity in medieval and early modern Europe. Records from the middle ages show that hundreds of animals were tried for crimes committed against humans. Most of the trails took place in France, Italy and Germany and spanned a period of nearly five hundred years, lasting until the mid19th century. Animals were tried for a variety of offences, with murder, theft, property damage and fraud being the most common. The cases of larger domestic animals, such as pigs, dogs, bulls and horses were heard in the secular courts, while the crimes of smaller creatures, such as mosquitoes, grasshoppers and weevils were heard in the ecclesiastical courts, where bishops would preside over

proceedings. Edward Payson Evansâ&#x20AC;&#x2122; exhaustive chronological list of animals prosecuted for crimes reflects the extent of which the Trial of Animals formed a substantial part of Medieval Jurisprudence. His book contains around 200 cases where animals were brought to trial for various crimes. Criminal proceedings against animals were handled with the utmost seriousness by medieval legal authorities. Because the judiciary was concerned to apply the law equally to animals as to humans, animals were frequently placed on the rack and tortured before their trials, although it remains unclear how any of their confessions were interpreted, given that animals cannot speak human languages. As with a human being, an animal charged with committing a crime would be brought to court, appointed a lawyer and trialled before a judge. The lawyers would develop complex

arguments to defend their ‘clients’. Bartholomew Chassennee, a defence lawyer in the sixteenth century built his reputation at the French bar by acting as counsel for an unspecified number of rats of both ‘bad repute and notorious guilt’. Accused of having ‘feloniously eaten and wantonly destroyed’ local barley, the rats were prosecuted in the ecclesiastical court of Autun, Burgundy, France. Bartholomew Chassennee successfully argued that given his furry clients dwelt in numerous villages, a single summons had been insufficient to notify them all of their court date and furthermore, many had expressed fear for their lives, as attending court would mean having to scurry past the neighbourhood cats. Bartholomew Chassennee became renown throughout France for his excellent advocacy skills. In 1993 the BBC produced the British/French 1993 film ‘The Hour of the Pig’, with actor Colin Firth playing the part of Bartholomew, charged with defending a pig accused of murdering a young Jewish boy. The pig is owned by a beautiful Moorish woman with whom Firth’s character falls in love with. If you are interested in watching the medieval judicial system at work, it is quite an entertaining film. Mostly because pigs lived in close quarters to humans in the middle ages and were also allowed to wander freely through villages, a large number of animal defendants were pigs. In one case in Bourgogne, France in 1457, a pig was found guilty of murdering a baby and was sentenced to death by hanging, although her six offspring were acquitted based on their ‘youth and innocence and the fact that their mother had set a bad example’. When a pig behaved badly in the courtroom (such as

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When a pig behaved badly in the courtroom (such as grunting loudly) its lack of composure would often count against it in sentencing.

grunting loudly in the prisoner’s box, or trying to poke its nose through the bars) its lack of composure would often count against it in sentencing. In contrast, a more demure pig would receive a ‘certain measure of consideration’ by the court. Although stories like the ones above sound far-fetched and ridiculous to us now, the fact is there is still something fundamentally wrong in the way humans view animals. The RSPCA reports on its website that nationally its inspectors are required to respond to approximately 50,000 reports of animal mistreatment. Fortunately however, the community is becoming more aware about animal welfare. Animal protection issues are also becoming more prominent in the legal profession with 14 Law Schools in Australia to date either teaching or planning to offer animal law as an elective. Perhaps in this regard modern society no longer retains aspects of its medieval mentality? NB: Interested in Animal Law? ANIMAL Moot registrations are closing soon on Friday 5 August. This year’s moot is being hosted by last year’s winner, Flinders University. For more information see: http://www.ali.org.au/ events/ To register for this moot contact Laura Crase at competitions@usalsa.org

YOU MIGHT NOT LIKE THE RESULT, BUT-

THAT’S DEMOCRACY

Pic: DFAT

Words: Travis Shueard

SHUEARD J

Wake up. There has been an awakening …an awakening of fascists.

Democracy is not a perfect system. It is far from perfect but, in the paraphrased words of Winston Churchill after fighting the horrors of World War Two European Fascists, it is the best one we have. Democracy often has flaws, but generally has delivered stable governments for many countries. Often, the people will elect a government that turns out to be a dud, and just as often the people will elect a government that takes that country to new heights. This is democracy at work: the people voting and their decision being honoured by their elected representatives. But unfortunately there is a growing trend, particularly online within the white noise that is social media, to treat democracy as only working if it delivers the result you wanted. It is perfectly acceptable to disagree with a decision that an election has delivered, such as the recent Federal Election, or the UK referendum on European Union membership

(popularly known as ‘Brexit’). It is well within your rights as a person to argue passionately and vociferously that the decision made by the electorate is the wrong one, in your view, and will detriment society. However, is it right to blanket argue that democracy has ‘failed’, or that we must have a re-vote because the result was the ‘wrong’ one? Is it right to disrespect the majority that voted the opposite way to your views as being all racist, bigoted, uninformed or ignorant, (pick your buzz word) and only you and your alike thinkers possess the keys to prosperity? No. The people voted and democracy worked as intended; you just don’t like the result. Which is fine - you are able to disagree with a result. But subverting democracy to get the ‘right’ result only hurts the country, the people and the nation’s democracy as a whole. For example, many people (including this author) are perplexed at the decision of the United Kingdom to leave the EU (generally speaking - Scotland and Ireland both voted to ‘Remain’).

There are many reasons as to why it could potentially be the wrong decision economically for the UK, just as there are many reasons of national sovereignty that are important to the British people that led 17 million to vote ‘Leave’. Of course, there was misdirection and fear propagated by the ‘Leave’ side - just as there was from the ‘Remain’ side. The difference is how this habitual lying is chacterised – if it is for the ‘right’ result, then well, the ends justify the means. If the misdirection and lying is for the wrong result, well, it is scaremongering!

The older British people who voted overwhelmingly to ‘Leave’ the EU are a great example. The angry millennial voters cry out ‘they won’t be here in 30 years time to suffer this damage the Leave will cause!’ and they yell at the top of their lungs ‘why are they so selfish?’ Ignoring the fact that only 35 per cent of eligible 18 – 24 year old voters voted, the implication is that the older generation’s vote should not count as much. In their minds, democracy only works when it works in their favour, and only some votes are worth the paper they’re printed on as they fall into the ballot box.

The Australian Federal Election has been recently decided with the Coalition staying in power with the slimmest majority under Prime Minister Malcolm Turnbull. Throughout this election we saw outright lying with the ‘Mediscare’ campaign being used by Labor. The claim by Labor, refuted by the medical profession, was that the Coalition wanted to privatise and dismantle Medicare - this bordered on simple statements to the media to fraudulent text messages claimed to have been sent by Medicare, but were actually sent by Queensland Labor (these messages are now under investigation by the Australian Federal Police). Where are the social media warriors for democracy decrying this fraud? All silent on the Western Front.

When we start deciding who’s vote should count for more or less, we run the risk of undermining and diminishing our democracy. Ironically, fascist elements pervade the cultural Left as they accuse the Right of being fascists for daring to have differing opinions. It would be democratic to vote the Australian Government out in the next federal election in three years. It is not enough that the Coalition policies, ideology and values are different to yours and therefore we need to shame those who voted for one reason or another.

And yet, there is no shortage of people crying out that this election result was the ‘wrong’ result and that the people are racist, ignorant, bigoted, etc. Some people seem to imply that only those who voted on the Left side of the fence (Labor, Greens and everywhere in between) know what is ‘right’ for this country and that only the ignorant, the homophobes and the bigoted have voted for the Right side of the camp. That democracy has ‘failed’ and we need to stop those from voting that have different opinions - in this case, the substantial older population, the religious community, the regional and rural populations etc.

Unhappy about an election result? Get involved - seek to make your party or representative drive home their message better. Discuss reasonably and calmly with people of differing viewpoints - quite often the people who vote the other side of the fence of you are not that different. We need to change the political culture in which habitual lying is part of everyday politics. But that is a longer-term project. Anything we do must encourage our democracy, not damage it. If you respect democracy, you will cry out against the habitual lying, misdirection, and selfinterest propagated by the major parties. But above all, respect democracy - it may not deliver the result you want, but it certainly delivers a result preferable to that faced by many people overseas.