The Obiter Issue 14 by The Obiter Magazine

Issue 14

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CONTENTS Editorial ................................................................................. 5 The Team ............................................................................... 6 Coming Events ...................................................................... 7 FEATURE Patenting Genetic Materials: Where to Next? - Mathieu Bazin.. 8 RATIO Accessorial Liability - Stephen Ranieri .............................. 10 Knight’s Templar - Leo Coldbeck Shackley ....................... 13 CROSS-EXAMINATION Law & Lattes - Jodie McRae, Aboriginal Legal Rights Movement ............................................................................. 16 IN CHAMBERS Law Ball - Seamus Brand .................................................... 19 A Report from Jessup - Cameron Henderson ..................... 20 OBITER DICTUM Children Are Not Tourist Attractions - Georgia McRae .... 22 To Plebiscite, or Not To Plebiscite - Bec Copeland ............ 24 Open Democracy - Tom Edwards ....................................... 26 The Knight’s Templar - Leo Coldbeck-Shackley ................ 28 Why Aren’t We Talking About It? - Chelsea Marks ............ 30 BAMPTON J Does Studying Law Make You An Arsehole? ..................... 32

FROM THE EDITORS

From left: Travis Shueard, Tom Edwards, Madeleine Pivavoroff, Carly Austin, Philippa Jones, Georgie McRae. Absent: Sarah Dinham

For those long-time readers of the Obiter, you’ll be aware that last edition we bode farewell to the dynamic duo that was Meredith and Wilbur. These two’s knack for puns and passion for the law school made this magazine great, so it was pretty intimidating to be left in charge. There were big shoes to fill, and so we took the only reasonable path and brought on a swathe of new and enthusiastic faces to help us continue their great work! Flick the page for an introduction to the new team. So, it is with mostly excitement and a little trepidation (my pun game’s got nothing on Wilbs), we bring to you Issue 14 of the Obiter. We hope to continue to build the Obiter as a magazine that makes you laugh, think and feel proud to be part of the law school! This edition sees the return of many old favourites, ‘Law & Lattes’ is back

to give you the run down on the new Stolen Generations Reparations Scheme, and taking care of yourself while at law school. Leo ColdbeckShackley brings us into the world of historical trials with a piece on the Knight’s Templar. Students including Chelsea Marks and Bec Copeland, as well as two of our very own Obiter eds Georgie and Tom, offer some opinions on topical issues. We also have a couple of great legal pieces by first time contributors, Stephen Ranieri and Mathieu Bazin. Finally, Hugh Bampton brings us what may be the first ever Obiter piece to require a serious language/ general offensive content warning. Any complaints should be sent directly to Mr Bampton himself. On that note, - The Obiter Team

enjoy!

THE (NEW) TEAM Georgie McRae

Travis Shueard

Carly Austin

Madeleine Pivavoroff

Sarah Dinham

Tom Edwards

Publications Director

Editor

Philippa Jones Editor

Editor-In-Chief

Editor

With guest contributors including - Leo Coldbeck-Shackley - Cameron Henderson - Stephen Ranieri - Hugh Bampton - Mathieu Bazin - Chelsea Marks...

COMING EVENTS USALSA Pub Crawl “The Equity Strikes Back” Friday May 6th at 6:30pm (Begins PJ O’Briens) Trimester One Exam Period Begins March 13th

USALSA Law Ball “Law Ball Empire” Friday May 25th at 7:00pm The Lion Hotel, North Adelaide Tickets $90

Patenting Biological Materials:

Where to Next?

FEATURE

Words: Mathieu Bazin

In October 2015, the High Court in D’Arcy v Myriad Genetics Inc held that claims over an isolated human gene did not constitute a ‘manner of manufacture.’ This is pursuant to s 6 of the Statute of Monopolies, which is to be read with regard to s18 (1)(a) of the Patents Act 1990 (Cth). The High Court’s ruling was a surprising development, marking a substantial change and refinement to the patenting of genetic and biological inventions and to patent law generally. Until the High Court’s ruling in D’Arcy v Myriad Genetics

Inc, the 1959 case of National Research Development Corp v Commissioner of Patents (the NRDC case) was generally considered the leading authority in deciding whether the subject of a patent claim was ‘a manner of manufacture.’ The well-known and wellestablished ‘NRDC test’ for ‘a manner of manufacture’ stated that a product or process must be an ‘artificially created state of affairs with economic significance.’ However, the High Court in D’Arcy rejected this formulistic and narrow approach in favour of a more flexible, case-by-case attitude.

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As it stands, claims over any genetic material ‘where they merely replicate the genetic information of a naturally occurring organism’ are now unpatentable. A claimed invention must still have economic utility, determining whether the substance of the claim is ‘made’, ‘artificial’ or even ‘baseline inventive.’ This involves a broad and discretionary comparison of whether there is material difference between the state of affairs before the invention, and the state of affairs as a result of the invention. The Australian Government agency that monitors intellectual property, IP Australia has since conducted a full scale revision into their examination practice of patents to accommodate for the High Court’s decision. As it stands, claims over any genetic material ‘where they merely replicate the genetic information of a naturally occurring organism’ are now unpatentable. This position is deserving of commendation as claims over genetic material are too broad and run the risk of disproportionally stifling legitimate innovative activity. What is troubling about these recent developments is their scope. The intellectual property community, including myself, have expressed concerns that the current practice may encroach into other areas of biological

inventions. This could include areas such as polypeptides, proteins, cell organelles, and micro-organisms, and whether they are natural, isolated, or copied. These could all be excluded from patentability as they are not materially different to their natural counterparts. This could cause huge repercussions in Australia’s patent system. First, it would drastically reduce the area in which individuals can patent biological inventions. Secondly, it would erode any incentive for innovators, researchers, or companies, to innovate in many areas of biological science. Thirdly, there would be a drastic and undesirable decline of new and more efficient diagnostics and treatments available in the pharmaceutical market for all Australians. While the High Court’s recent development arguably provides a well deserved balance to our patent system, more needs to be done in the legislative or judicial sphere to secure the current position of IP Australia and Australia at the forefront of innovation.

The Supreme Court of the UK restates the common law of criminal accessorial liability.

RATIO

Words: Stephen Ranieri1

On 18 February 2016 the Supreme Court of the United Kingdom handed down its joint decision in R v Jogee [2016] UKSC 8; and Ruddock v The Queen [2016] UKPC 7.2 Ruddock’s case was an appeal from the Judicial Committee of the Privy Council (Jamaica); and Jogee’s was an appeal from the England and Wales Court of Appeal (Criminal Division). Both appeals were heard and determined concurrently. This judgment paved a substantial change of how the doctrine of criminal enterprise is to be interpreted at common law in the United Kingdom. A joint criminal enterprise is where two or more persons act together in the commission of

a criminal offence.3 Any person party to the criminal enterprise is criminally liable for the acts of others committed in carrying out the enterprise. If, in the course of that criminal enterprise, the principal (the first defendant) commits a further crime then the accessory (the second defendant) is also criminally liable if he or she had foreseen the possibility that the first defendant might act as they did. This is commonly known as extended joint criminal enterprise or “parasitic accessory liability”.4 Ruddock and Jogee were both convicted of murder based on extended joint criminal enterprise, as accessories to the respective principal offenders.

The UK Supreme Court took occasion to review the doctrine of parasitic accessory liability following the Privy Council judgements in Chan Wing-Siu v The Queen;5 and later in R v Powell & English.6 The doctrine of parasitic accessory liability as stated in Chan Wing-Siu holds that: 1. The simple foresight only of the possibility that the first defendant may commit a further crime is enough to bring a second defendant within the ambit of the principal offending by the first defendant to the criminal enterprise; and 2. That foresight of the possibility (of the further crime) combined with the second defendant’s continuation in the enterprise to commit the crime is enough to bring him or her within the scope of the conduct which they are criminally liable, even if the second defendant did not intend on participating in any further criminality beyond the initial criminal enterprise. This led the UK Supreme Court to observe the “striking anomaly” where a lower mental threshold is required for the guilt of the accessory over the principal.7 The UK Supreme Court undertook a comprehensive review of the historical development of criminal accessorial liability from the midnineteenth century. Most importantly, the UK Supreme Court concluded that Chan Wing-Siu and later cases took a wrong turn in their reasoning and as such, this case demanded a fresh elucidation of the principle.

The UK Supreme Court unanimously held that simple foresight is not enough for a second defendant to be criminally liable for the acts of the first defendant, and to the extent that the previous authorities suggested otherwise, they were wrong and should no longer be followed. The UK Supreme Court laid out the correct approach as follows:1. The second defendant must, in fact, participate by assisting or encouraging the commission of a crime; and 2. The second defendant must intend to assist or encourage the commission of a crime. On this basis, foresight was erroneously equated with intent. The Court held that “… as a matter of law; the correct approach is to treat [foresight] as evidence of intent”.8 Both appeals were allowed and the convictions of murder quashed. In Jogee’s case, the UK Supreme Court held that there was a case fit to go to the jury that he had the requisite mental element for a murder conviction; and invited the parties to furnish submissions as to whether a retrial was held, or a verdict of manslaughter be substituted. In Ruddock’s case, the conviction was quashed and submissions were sought as to the disposal of that matter. Its effect on the Australian common law remains to be seen, however the UK Supreme Court “respectfully differ[ed]” from the High Court of Australia in such cases as McAuliffe v The Queen, Gillard v The Queen and Clayton v The Queen.9 In McAuliffe the High Court applied the reasoning in Chan

Wing-Siu and emphasised that “… the scope of the common purpose is to be determined by what was contemplated by the parties sharing that purpose” and that, “the criminal culpability lies in the participation in the joint criminal enterprise with the necessary foresight and that is so whether the foresight is that of an individual party or is shared by all parties”.10 In the 2006 case of Clayton v The Queen11 the High Court expressly disavowed the opportunity to restate the law of extended joint criminal enterprise, stating “[t]hat is a task for legislatures and law reform commissions”.12

(sitting as the Court of Criminal Appeal), which, among other matters, raises the extended common purpose intention issue.13 Given the UK Supreme Court’s abdication from Chan Wing-Siu it will be curious to see if our High Court yields to the restated UK position when these matters are heard and determined.

As of February 2016, the High Court has granted special leave to appeal from a decision of the Full Court of the Supreme Court of South Australia

LLB, BBehSc (Psych), LLM. Tutor, School of Law, University of South Australia. I am thankful for the helpful editing comments of Mr Dane Stella, student, LLB at Victoria University. All errors remain my own. 1

Lord Neuberger (President), Lady Hale (Deputy President), Lord Hughes, Lord Toulson and Lord Thomas. 3 In Australia, the terms “common purpose”, “common design”, “acting in concert” and “joint criminal enterprise” are used interchangeably – McAuliffe v The Queen (1995) 1983 CLR 108, 113. 4 Judgment at [2], Chan Wing-Siu v The Queen [1985] AC 168. 5 [1985] AC 168. 6 [1999] 1 AC 1. 7 Judgment at [84]. 8 Judgment at [87]. 9 Judgment at [76], McAuliffe v The Queen (1995) 183 CLR 108, Gillard v The Queen (2003) 219 CLR 1, Clayton v The Queen (2006) 231 CLR 500. 10 McAuliffe v The Queen (1995) 183 CLR 108, 114, 118. 11 (2006) 231 ALR 500. 12 Ibid 505, [19]. 13 R v Presley, Miller & Smith [2015] SASCFC 53; and for the special leave applications: Miller v The Queen [2015] HCATrans 296, Smith v The Queen [2016] HCATrans 16 and Presley v The Director of Public Prosecutions for the State of South Australia [2016] HCATrans 17. 2

Historical Trials:

The Knight’sTemplar image: AncinetOrigins.net

Words: Leo Coldbeck-Shackley

The time period between the 14th and 18th centuries is a dark span of years for both the law and religion. Mythology was to be poisoned by theology. The spirits of the world, the elves, sprites, fairies and goblins, some of which committed evil but most who were kindly, would be replaced. No longer to be seen as emanations of the natural world, but as diabolic agents of the occult. The Devil had indeed come into his full ascendancy. Complicit in his rise were the powers of Church and State: ‘The Catholic Faith, indeed, wishes that devils should be something, and should be able to injure by their works.’--St. Thomas Aquinas In this time there existed two

systems of trial. One which is known, and adopted in this country, is where an accuser will show their hand from the outset. Precise charges are laid and the evidence is presented to make good those charges. Another, now discredited system was in full operation in the ecclesiastical courts and adopted by the secular courts. Under the latter, the accused was arrested on a suspicion No precise charges were laid and the case was built against them by the gradual process of repeated examination. These examinations were with a mind to obtain material upon which the charges could be made. The examinations were often aided by the application of a terribly potent machine, which

was to become perfected during this period. One that was unsurpassed in its efficacy for producing guilt from innocence and a guilty conscience where before there was none. That is, of course, the reliance on a confession obtained through torture and interrogation techniques such as false suggestions, banishing all counsel and reduction of the diet. The accused would be reduced to such a state that a prosecutor could obtain any information that was necessary or desired. Where an accused denied guilt a torture was to be applied, and if the accused continued to deny guilt, the torture was applied in increasing severity. Few were bold enough to act as counsel for those charged with heresy or sorcery; as such an act would expose them to the same charges themselves as a promoter of heresy. The event to mark the start of this dark history came early in the 14th century with the trial of the Knights Templar. The Order of the Knights Templar had humble beginnings. After Jerusalem had been captured by the Crusaders in 1099, the pilgrims travelling from Europe to the Holy Land were subject to great harassment by bandits who infested the roads. A few pious knights formed a brotherhood to protect the pilgrims on their journey. The Order was eventually sanctioned by Rome in 1128. Their rules were harsh and solemn. They were to become the model of the perfect Christian warriors, waging war for

Christ without fearing of sin in their killing, or if they themselves received the death-blow, no fear of eternal damnation. They were to become an elite fighting force during the Crusades. But by the 14th century the Orderâ&#x20AC;&#x2122;s original purpose was all but spent. The Crusaders had failed. The Holy Land was in possession of the Crescent and the Cross had been dispatched. And the knights, who had sworn to live a life of poverty with no possessions but their arms, had grown rich. Members of the Order owned vast amounts of property and had taken up the professions of banking and trading. The Vatican had granted the Order significant privileges, and they could pursue their own interests without reference to the interests of the nations within which they resided. They were regarded with jealousy and suspicion by outsiders. Philip IV, King of France, proved to be the Orderâ&#x20AC;&#x2122;s most formidable opponent. The French Crown was poor and indebted to the Order with no means of repayment. The Pope was Clement V, a weak leader, and more a puppet of Philip. Lawyers like Pierre du Bois advocated for the primacy of the French Crown, arguing that the Templars be suppressed and that the King should have jurisdiction over the Order. A great advocate for this cause, Du Bois laid the groundwork for the abolition of the Order and the

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Few were bold enough to act as counsel for those charged with heresy or sorcery; as such an act would expose them to the same charges themselves as a fautor or promoter of heresy. confiscation of its property. Amidst this, was a sense of disillusionment; The Holy Land was in the hands of the Men of the East; Christianity had failed. Talk of heresy and a desire for prosecution was rife. Thus, the trials of the Knights Templar brought the terrible machinery of the medieval trial to bear against the mighty Templars, and the worst types of atrocities were concealed in the shroud of legality. Philip struck without warning. On 13 October 1307, the command went out that all the Templars in France were to be taken as prisoners. Wild stories of all kinds of aberrations committed by the Templars circulated. The charges at this stage were imprecise: heresy, immorality, and blasphemy. Once the suspicion of heresy was raised, torture was inflicted to extract further proof. Many confessed. Phillip brought pressure upon Clement V, and by August 1308, the Pope issued articles to various sovereigns in Europe suggesting that the Templars be interrogated on a number of charges. These articles mainly related to denial of Christianity, including: denial that Christ is the true God; spitting on the cross or a figure of Christ; the worship of a certain cat idol that would appear sometimes at the Order’s meetings. Commissioners and provincial councils were

established by the Pope to conduct inquiries into the Order on his behalf. In April 1310, the trial of the Order began in France. Motivated by promises of safety, around 54 Templars came forward to defend the Order. The offer involved a withdrawal of all they had confessed in exchange for a plea that they were relapsed heretics. Following the trial, they were all burnt at the stake. The Templars were repeatedly condemned by the councils in France. The Order was dissolved in 1312 and its property was confiscated by Philip. The majority of the remaining Templars were left simply in the dungeons. Their Grand Master was burned at the stake. Phillip’s greed appears to have been the catalyst for the whole affair; as one writer put it: ‘the bees must be burnt if the honey was to be got.’ This obsession with the occult by the Church, and manipulation by the State, would continue for hundreds of years; the diabolic agents taking on an even more definite form and believed to be constantly at work. The machinery of the medieval trial would also again be turned against enemies of the State, cloaked in piety and sanctioned by the Church. See: John Macdonell, Historical Trials (C.A Watts & Co. Ltd, 1931)

Law & Lattes:

CROSS EXAMINATION

Jodie McRae, Aboriginal Legal RightsInterview: Movement Georgia McRae

is based around providing reparation to people who had been involved in what we call “the Stolen Generations.” The Government has long acknowledged this blight on our history happened, but up until November, had not done anything by way of reparation for those people who had been wronged by the State Government.

*Views are Jodie’s own!

However, ALRM brought the case of Trevorrow, which was and is the only successful stolen generations case in both SA and across Australia, so [that] placed a lot of pressure on the Government to make reparations. Luckily in November of last year they announced a fund of around $11 million to be set aside for the reparations scheme.

Thanks for chatting with us today. Could you tell us a bit about the new Stolen Generations Compensation Scheme? In November of last year there was an announcement that the State Government were bringing in the Stolen Generations Reparation Scheme, which

The scheme opens on 31 March 31, and is only open for 12 months, so we’ve made very important submissions to our community to come forward as soon as possible. As we understand it, the scheme will allow for payments up to $50,000. We also understand that another fund has been put

For this edition’s Law & Lattes, we caught up with the Aboriginal Legal Rights Movement’s Senior Civil Solicitor, Jodie McRae, to chat about the Stolen Generations Reparations Scheme which came into effect on 31 March.

aside for ‘the whole of community reparations scheme.’ We understand they will take submissions from community groups and councils about what they can provide in way of assistance to community members, perhaps in the form of memorials, scholarships, exhibitions, counseling and so forth. In terms of everything else, we have just been provided with an application form today, so in terms of making submissions to our clients, we are still going through. How has the scheme been received by First Nations people in South Australia, so far? I think there has been a mixed response. There are some people in the community who say it has taken too long, because at the end of last year two quite senior elders within the Aboriginal community passed away. They were both victims of the Stolen Generation and they passed away before ever having any reparations. We have lost a lot of elders to old age and unfortunately waiting so long has taken its toll and some people are bedridden, some people are of ill-health, and whether they will actually get the benefit of this sort of application is questionable. Having said that there are others who are very pleased that finally they are receiving reparation and acknowledgment of the wrong. But it’s taken a long time. So I’d say mixed;

most people are happy it has happened but unhappy it’s taken so long. Is there anything else you would like to add about the scheme? I’d like to say that it would be pleasing if [the Government] consulted with the community in relation to how the assessments will take place. Also, we’re very pleased that they’ve set up a fund for the whole of community because we feel in order to be healed further, reparation needs to be made to the community as not only did individuals suffer but whole communities. The effects of the Stolen Generation is not limited to one individual. If you look at the First Nation’s people, relationships, community and personal interests are all interwoven, so [when] a person within a First Nation’s group suffers a wrong, [it] has such a wide ranging ramification for the community. Many, many people still talk about the removal even today as if it happened yesterday because they still feel that terrible loss of that person and the loss of that connectedness. It has a huge impact on people outside the one individual. Why did you decide to get involved in the more not for profit side of legal practice rather than going down the private route? I think it comes down to a personal choice. My driver is and always has been social justice. I want to make a difference essentially, and that’s

why I chose not for profit. Making a difference is really what drives me, and wanting to effect social change through my legal career. What advice would you give for students wanting to follow a similar pathway? The best thing to do is probably volunteer – it doesn’t matter whom with. Maybe choose something that you feel passionate about, try to pursue that to marry up your passion with volunteering. Research what groups are within fields that you’re passionate about, for example the Women’s Legal Service or if it’s the plight of First Nations people then ALRM is probably your first port of call! Second, to tailor your subjects to that. If you can, choose subjects like human rights or First Nations [Editor’s Note: perhaps ‘Law, Land and Peoples’ taught by the erudite Dr Irene Watson]. Personally, I like to advocate and I love to be in court. So my studies really centred around that; I did a lot of mooting and trial advocacy work, so you can do that as well if that’s your interest. There has been a big push in the industry to talk more about mental health and wellbeing. Do you have any advice for students or graduates who may be feeling overwhelmed by the practice or study of law? I think it’s really important to get perspective in any profession or if you are studying. You need to know when to go on holiday or when to

stop, when you’re doing too much; to understand within yourself what those warning signs are. If you’re not getting to matters, or if you have lots of assignments and you feel you can’t do any of them, it may well be that you need to say, maybe I am doing too many subjects. Maybe pair it back and find your feet. In more extreme cases you might need a break. You can put your studies on hold because your health is more important. Go back to it when you are feeling better. Go on a holiday, go travelling, put life in perspective. Also, my suggestion is to get some professional help as well. I know universities have counsellors, or you can do it privately. You can go talk to your GP about getting some counseling. There’s no shame in seeking help. I know I have. I know lots and lots of colleagues who have. There’s no shame in saying it’s too much or there’s times when certain things happen in your life. I lost a child, so I needed some professional help in relation to dealing with the grief, and I think it’s perfectly okay. If you break your leg, you go to the doctor and get a cast. I don’t think it’s any different in terms of mental health. There’s no shame in it and I would strongly urge students to do the same thing. Lifeline offers 24/7 crisis counseling on 13 11 14. You can also get resources from organisations such as BeyondBlue, Reach Out or the Tristan Jepson Memorial Foundation.

USALSA 2016

Law Ball Empire DOLL YOURSELF UP GUYS & GALS, IN PROHIBITION , EVERY PARTY COULD BE YOUR LAST SO COME JOIN US DOWN AT THE SPEAKEASY COCKTAIL FOOD, BEER, WINE AND CIDER INCLUDED!!

Secrets, Espionage and

Three Hard Months

IN CHAMBERS

Words: Cameron Henderson

Take two States, one a developing Presidential Republic, with a developing agricultural economy. The other a developed, tech-savvy democratic power. Both States share trade, culture, railroads, infrastructure and intelligence. Both States are parties to international treaties requiring respect or human rights and general co-operation between the nations of the world. Each nation, to promote their national interests in their neighbouring countries, sets up a broadcasting station in the other’s territory. Amestonia believes it is under the pretence of ‘furthering cultural collaboration.’ Riesland had other ideas.

Over 20 years later, documents leaked by a rogue Rieslandic intelligence official paint a different picture. Ex-spy Frederico Frost tells the world that since the inception of their international broadcasting station, Riesland had been spying on Amestonian politicians, businesspeople and dignitaries through its extraterritorial facilities. Furthermore, they have tapped the undersea cable carrying Amestonia’s internet traffic, sucking up 1.2million gigabytes worth of data from Amestonian citizens each and every day. The world looks on, questioning the ‘national security’ justification peddled

by Rieslandic officials and the legality of its actions. In the midst, an eco-terrorist group, dedicated to protecting the extinction of the bee population around the globe, sets Amestonian warehouses on fire and plans mass terrorist attacks through contaminating the honey stockpiles destined for Riesland’s homes. An former Amestonian Greens politician is arrested in Riesland on terrorist charges, while both parties launch an action to the International Court of Justice to settle the disputes between them before any further escalation occurs.

competition in the world.

Enter the Jessup Moot team, five UniSA law students charged with the challenge of carrying out proceedings in front of the International Court of Justice.

The Jessup Moot is not for the fait hearted. Nor is it for those who don’t want to put in the hard yards. But it is likely to be the most rewarding experience you have at law school, if you are willing to put in the work.

Three months of preparation, 24565 words of written submissions, 2am finishes for the week before submissions were due and one hell of an adrenaline rush standing at the bar lectern in Canberra. The Jessup moot competition is everyone you could imagine and more. In February 2016 the team of James Black, Simon Rogers, Franciska Sita, Peta Spyrou and Cameron Henderson, along with the assistance of the Dean of the Law School, Professor Wendy Lacey, and the esteemed Professor Ivan Shearer, headed off to the Australia’s capital to compete in what is often regarded as the most prestigious moot

The task was immense, but worth every second. Twenty something hours of oral submission training, countless weeks adjusting the written memorials and a sleepdeprived charge through four moots in the two day long preliminary rounds. Between drinks we met fellow mooters from across the country who shared a passion in international law and the pursuit of human rights and a fairer, more cohesive global legal system.

After being knocked out of our group in the preliminaries, we had the chance to watch the final in Courtroom 1, in the awe-inspiring High Court of Australia. One wonders how many more years into a career you need to enter that Courtroom as an advocate again. I could not recommend the experience more highly and I encourage anyone interested to give it a crack in the future, because one day you might be in the UniSA team that makes it to Washington. I implore you all to keep the spirit alive.

Children Are Not

Tourist Attractions Words: Georgia McRae

often damaging and ineffective.

OBITER DICTUM

image: ChildSafe Intl

In Cambodia, a voluntourism hotspot, over 70% of ‘orphans’ have at least one living parent. Many more are likely to have extended family who may be able to care for them. However, parents are often pressured to give up their children by those running the orphanages, who state they can provide better opportunities for children. Sadly, this is usually not the case.

Many law students consider volunteering abroad, either as a way to ‘give back’ or perhaps to get relevant experience. While many students may undertake internships abroad, there are also many providers offering ‘voluntourism’ opportunities, including working in an orphanage in a developing country. Although many of these volunteers may be well intentioned, there is growing concern about the possible negative impacts of orphanage ‘voluntourism’. Recently, an organization called ReThink Orphanages has been working to spread the word about these issues, with Griffith Law School one of the founding members. This organization echoes what many experts have been saying for years – that orphanage tourism is

Unfortunately, the negative impacts of orphanages on children’s physical and emotional development are well-documented. There is a reason residential institutions are almost never used in developed countries, except as a last resort. Many travellers comment on how affectionate children in orphanages are – however, child psychologists view this as sign of an attachment disorder, where children’s emotional wellbeing is damaged by the constant influx of short-term affection and care followed by abandonment. Desperate for love and affection, children attempt to get as much as possible whenever it is offered (such as when short term volunteers arrive), as they know it will soon be taken away. This can lead to life-long issues and is frequently observed in children who spend extended periods in institutions. Therefore, we see a double standard

between how vulnerable children are treated in many developing countries by volunteers, and the standards we expect in our own countries. Imagine asking to pay some money to visit a children’s care home in Australia, to play with the kids, take some pictures for Facebook and maybe give them some presents. You’d probably be arrested! This is because we recognize the need for children to have stability, privacy, and above all, protection. A revolving door of short-term, unqualified volunteer carers does not provide this, and can inadvertently expose children to risk, no matter how well intentioned. In Cambodia, the majority of institutions are unregistered and thus unregulated by the Government. Many orphanages have been accused of keeping children in deliberately squalid conditions in order to appeal to the compassion of foreign visitors, who then donate or fundraise in their home countries. Tragically, several Cambodian orphanage founders have been charged with child sex offences. Even in the ‘best case scenario’, volunteers may be illequipped to deal with highly vulnerable and often traumatised children, in a culture very different to their own. These facts are upsetting, but awareness of them can help people to make informed, positive choices about how to help abroad. The key factor is to think carefully about the impact of your contribution. If you wouldn’t do it in your home country, think about why, and assess accordingly. Examples are: •

Are you inadvertently exposing

children to risk? • Do you have the skills to work in the position you’re volunteering for? • Are you taking jobs away from the local people, who desperately need them? Considering this will allow you to find opportunities that really benefit who you are trying to help, long-term. Look for sustainable opportunities where your impact will be felt for years to come. One such way is by offering your support to organizations that work to keep families together by providing training and employment opportunities, as well as assistance to families who are struggling. This approach keeps children out of orphanages and therefore contributes to their long-term development. Your support of these type of organisations can encourage their growth, and help shift away from the damaging orphanage model of care. Often, this may be by lending assistance from your home country, such as participating in fundraising activities (put those advocacy skills to test!). This is because it is usually the local staff who are best equipped to work with the community to meet their needs. However, if you would to visit overseas, look for volunteering opportunities that are sustainable and put your skills to work. For example, the UN takes a number of unpaid interns annually, or Reprieve Australia sends volunteers to a number of countries worldwide. There are many opportunities available to make a difference, without inadvertently damaging the society you are innocently trying to help.

Why Aren’t We

Talking About It?

OBITER DICTUM

image: LivingWell.org.au

Words: Chelsea Marks

In recent years, we have been more conscious about sexual crimes. It is no longer an issue we sweep under the rug and pretend does not happen. We are taught in school about the issue of consent and the media are reporting sex crimes more frequently. But there are still victims of sex crimes that we do not talk about. We have this common belief that sex crimes against these victims just does not happen, and if they do, the victim must have enjoyed it. “Can men be raped?” I asked my year 9 health teacher during a sex education class. I was the only one who had the guts to ask; everyone was thinking it, but no one said it. I knew child molestation occurs and women were experiencing sexual

assaults in record numbers, but I had never heard of a man being raped. It seemed like a myth, does it really happen? Can women be rapists? Or is this only a crime that happens to women? Men are not supposed to be sexual abuse victims. They must be dominating, sex addicts who are oozing with masculinity. If they did not defend themselves, then they must have enjoyed it. Imagine if the offender was an attractive female, that guy should be considered lucky then. We have this culture that men are the tough ones, they do not show emotion and do not to cry. How are we to expect men to come forward if we have these beliefs. This culture makes it harder for men to talk about their

experiences, find support, or even report the offence to the police. Imagine the roles reversed. Have you seen the movie ‘The Wedding Crashers’? Remember the scene with Vince Vaughn’s character waking up, tied to the bed with Isla Fisher’s character having sex with him. He tells her to stop but she just duct-taped his mouth. Now think about Jennifer Aniston’s character in Horrible Bosses, and how she constantly sexually harassed Charlie Day’s character. Or in Get Him to the Greek where Jonah Hill’s character had a dildo inserted… well you get the picture. Should rape be funny? Now, imagine if the genders were reversed. Would you react differently? And when was the last time you saw a movie use a female rape victim as a punchline? Is it only funny when the victim is a man? It seems society believes a rape against a woman is far worse than a rape against a man. Society’s focus is on women as they are more likely to be victims of a sex

crime. This unequal treatment demonstrates that a woman is accepted as a victim but a man is not. Is it because women are stereotypically seen as the weaker gender so it is easier to understand they would be a victim of such a hideous crime, and men are stereotypically stronger, so how can they be victims? I want gender equality, I want to have the same rights and to be treated the same as a man would. But, as a woman, I cannot sit back and not talk about an issue where men are not being treated equally; and I hope that men do the same. By treating crimes differently based on gender, we are pushing against the ultimate goal of gender equality. So what do we do? Talk about it. Talk about it so much that it raises community awareness. Talk about it until we take these crimes seriously. Talk about it until men feel comfortable to come forward. Talk about it until men know that they are no less of a man if it happens to them.

Need help? The following organisations offer confidential counselling and other services for people affected by sexual assault. http://www.livingwell.org.au/ (male orientated) 1800 Respect (1800 737 732) (both genders)

To Plebiscite,

or Not To Plebiscite

OBITER DICTUM

image: pedestrian.tv

Words: Bec Copeland

Once a very simple matter, marriage was the binding of two people for life. Ideally, marriage was a public statement in the name of love and commitment. Love being a private matter, should be shared between a couple. However nowadays, nothing is ever very straightforward nor private. Same-sex marriage has been under political debate for years now, but has just recently reared its sociallycontroversial head once more in the form of a plebiscite. A very expensive plebiscite, indeed! A respected accounting firm, PricewaterhouseCoopers Australia (PwC), has approximated that the plebiscite could cost $525 million in total. The cost is expected to spike due to loss of productivity, the cost of the campaign itself,

and mental health costs for the LGBTI community. In January, Fairfax Media reported that the positions of federal officials in both houses have been watched carefully by marriage equality campaigners, and that a majority could now be achieved through parliamentary a vote. Costs would reduce to approximately $113 million if held on a federal election day, but a parliamentary vote would cost only $17 million. In light of this, the plebiscite proposed seems to be ill-advised. What a mess. But why all the fuss? We need to recognise that society is not what it once was thirty years ago. We have grown to respectfully acknowledge homosexual relationships in more ways than one. Some states recognise that same-sex

partners are the legal parents of children conceived through artificial conception. In Family Law Courts, same-sex relationships are treated, for all intents and purposes, like De Facto relationships. So what’s stopping us from jumping that final hurdle as a nation and legalising same-sex marriage? Further discussions may dance along a very thin and controversial line, but I can’t help resort back to the topic of religion and the influences religion has on the modern development of equality and mutual respect. Australia is known for being a culturally diverse nation, but according to 2011 statistics, our population retains a Christian majority. While I maintain an everlasting respect for each individual religion and the commendable principles they represent, some religious texts express attitudes which no longer embody the modern public opinion. Despite the evolution of certain views, some topics such as same-sex relationships remain stigmatised. In some verses of the Christian Bible, homosexuality is depicted as a sin. However, attitudes to other practices criticised in the Bible, such as divorce and premarital sex, have been altered through legislative reform or by changing social norms. However, the origins of the specific term “Marriage” lies within Christianity. Before statutes were enacted and marriage became a

“

So what’s stopping us from jumping that final hurdle as a nation and legalising same-sex marriage?

part of the court’s jurisdiction, the Roman Catholic Church has played a primary role in the formation of marriage and enforcement of marital obligations. Is it politically correct to change the meaning, and broaden the concept, of marriage? Was marriage meant to be the union of any two people in love, or was marriage only meant to be the union of a man and a woman? Would it be better to simply legalise same-sex unions, instead of a same-sex marriage? But I digress. The point being that we can either be supportive of equal rights in respect to marriage, or not. We either want to remove the stigma and reach a compromise, or we don’t. If a parliamentary vote in favour of same-sex marriage could be achieved, why needlessly spend millions of taxpayer dollars and put the LGBTI community under additional emotional stress? This decision plays with people’s futures and should be considered with high caution. The proposed plebiscite may come from a place filled with great intentions, but perhaps this matter concerning a minority requires a decision from parliament, rather than pass on the difficult decision into the hands of the divided majority.

Open Democracy:

the place for a ‘Muslim Party’ in Australia

OBITER DICTUM

image: LinkedIn

Words: Tom Edwards

Recent terrorist attacks have escalated tension between the Muslim community and farright demonstrators. Countless ‘Reclaim Australia’ rallies have taken place right around the country. Such protestors often promote the deportation of Australian Muslims, as well as any cultural roots and customs they may share. Undoubtedly, this is disenfranchising young Muslims. It is the wrong thing to do. We should not persecute those simply because they may hold a different faith to us. Australia is one of the world’s most culturally diverse communities. We should be proud of the integration of countless international communities to our

shores. We are all equal before the law. Donald Trump has recently suggested that the United States should block all Muslims from entering the country. Such segregation would only lead to greater tension. Does the presidential hopeful really want to edge the United States closer to that of Saudi Arabia where the government and monarch can prohibit foreigners from visiting the country simply due to their religion? In the past few months news has emerged that Sydney man Diaa Mohamed is in the process of creating a ‘Muslim Party’ to

contest seats at the next federal election. Mr Mohamed said that the party will be formed as a result of growing political activism against Islam. “We live in a democratic society and people are entitled to form antiMuslim parties just as people are entitled to form the Muslim Party,” he said. While some members of the community may be weary of such a move, I say good on them. Any party, whether they are The Greens, Labor, Liberal, the Social Democrats, Palmer United or now even The Xenophon Team should be respected for their desire to run for office. Policies may be ridiculed and ideas may be mocked yet it is through the passion for the future and the hunger for change that such parties exist. It is in this same light that I would welcome a Muslim Party. All groups of people are entitled to the democratic right of representing their community. If we were not to allow a Muslim Party to seek this fundamental right it may be considered discriminatory. All parties, whether they are established upon a Christian, Buddhist, Jewish or Muslim foundation should be able to run for office. Needless to say that this right also extends to parties

without any religious affiliation. Do I want to Australia and our way of life to be administered by Sharia Law? God no (pardon the pun). I do however respect why some Muslims might. I can also appreciate how they may simply want a person to represent their views to the greater Australian public. In the same way the Labor and Liberal Party have the right to run for office, so would a Muslim Party. Australians are proud of their way of life. If a Muslim Party were to run candidates in the next election and a proportion of the community believed that they do not represent the ‘Australian way of life’ there is a simple solution; don’t vote for them. With the advent of globalisation and unprecedented patterns of migration such issues will grow in prominence. While acknowledging our own cultural roots, we must also recognise that all views in the community have the right to be represented in our parliaments. Once we have fostered an environment where Muslims and non-Muslims can live together in harmony, then can ease the threat of domestically grown extremists and terrorist sympathisers. Promoting the rise of an Islamic Party will not do this alone but it may advance Muslim views in mainstream Australia where they may otherwise be ignored.

Does Studying Law

Make You An Arsehole?

BAMPTON J

image: realclear.com

Words: Hugh Bampton

* * * Bampton J comes with a heavy language warning from your friendly team at the Obiter who love press freedom but try to generally avoid offending everyone within 20km of the law school.

extremists and social disorder. You can almost see their little cogs struggling with the laws of physics.

For those of you who know me you’ll know that there’s nothing that I like better than a good soapbox. Surrounded by LNP sycophants on one side and the almost trope like inner city lefties (alongside occasional nihilist comrades) on the other for the past 18 months, there has been no end for the need to explain why and how both sides of politics are full of idiots incapable of engaging with hard data or common sense.

Fearfully, however, as I reach the end of my degree I have discovered that a degree’s worth of legal thinking and training has made it harder and harder for me to accept simple dichotomies. The world of black and white increasingly escapes me. Righteous rants delivered to uneducated masses are now peppered with caveats and a grudging explanation that there could be other possible explanations for a data set. While watching ideologues on TV I now have an urge to research rather than immediately condemn.

How satisfying it is to watch supposed free market groupies justify market distorting tax breaks, or watch bleeding hearts try to comprehend how open door migration policies leads not to utopia but the rise of

Some people might suggest this is simply the result of age. My genes suggest otherwise. As

the grandson of the only person in South Australian history to have Royal Commission inquiry directed solely at them for being a pain in the ass (shout out to Murrie in 67), and whose uncles gave me Atlas Shrugged and Animal Farm for my 11th and 12th birthdays, absolutism has always come naturally to me. No – I blame law school. Contrarianism simply doesn’t do it for me the way it once did because something in the back of my mind compels me to start considering the counter arguments. So what’s the problem you ask? Surely being able to comprehend another’s perspective and concede when necessary makes you a better, more rounded person? Wrong – like most of our politicians who wormed their way through the cesspit of student politics (Editor’s note: *cough* University of Adelaide *cough*) while doing a law degree I have just got better at arguing. Being a law student hasn’t made my inner politician afraid of conflicting evidence, now I can anticipate it and either acknowledge it but direct attention away or simply explain how it doesn’t really apply to this situation. An opposing mind trained in this art can fight back - but to the average person I can now sound even more convincing as I explain how and why certain politicians are in fact the political equivalent of the human centipede. Here within though, is the problem. Most of our politicians have been to law school, or have staffers who did.

Most all of them did reasonably well, in-between stabbing other aspiring student politicians in the back. About a quarter on both sides of politics list a law degree as their qualification, and the percentage is rising. Inevitably they have got even better at saying nothing while talking, dog whistling in sotto and confusing the general public by misusing and abusing research and data. They have trained to be advocates – not clearly explain their principles in an open and carefully explained manner which allows for nuance and compromise. As Australian politics continues its downward spiral and both major parties eliminate internal party democracy for the sake of staying on message, the question has to be asked – should law students be banned from entering politics? More importantly – are the competent law lecturers and tutors walking blindly into the Nuremburg defence – it’s not my fault they ruined the country, I was just doing my job. On a final note - who were great Australian politicians? If, like most Australians, you have little to no knowledge of their even recent past, here are a couple. Sir Tom Playford – a Liberal premier and cherry farmer who nationalised electricity production in SA and greatly expanded the Housing Trust to help boost employment by keeping wages low. Ben Chifley, a train driver who became the ALP Prime Minister after Curtin and who started the Snowy Mountains Scheme, enlarged the CSIRO and sent the Army in to crush Communists in the coal mines. Note – not just lawyers or staffers.