Y T I R C L A OLUME 2 |
V AGAZINE | M N R O C R E PEPP
2023
Acknowledgement of Country Peppercorn would like to acknowledge the Ngunnawal and Ngambri people as the traditional owners of the land upon which our publications are written and distributed. We would also like to acknowledge our neighbours; the Gundungurra people to our north, the Ngarigo people to our south, the Yuin people on the south coast and the Wiradjuri people of greater inland New South Wales. We acknowledge their elders – past, present, and future – and the elders and first peoples from all nations across the continent. This was and always will be Aboriginal Land and we recognise that sovereignty was never ceded.
Statement on Historical Wrongs Peppercorn also recognises the historical wrongs perpetrated against Aboriginal and Torres Strait Islander peoples. Peppercorn acknowledges that colonisation is ongoing and racist structures continue to perpetuate the power imbalance inherent within this nation’s cultural, economic, and political institutions. Policies such as the Stolen Generations are not historical, but rather sustained oppression, paternalism and cruelty seen in the continued removal of Indigenous children from their homes per year. As the ANU LSS’ publication, we cannot ignore the role that our legal system plays in entrenching systematic failures and injustices to Indigenous peoples. Namely, by incarcerating Indigenous Australians at the highest rate in the world and the continued separation of families and communities, the system in which we live and work is continuing a colonial genocide. As law students, we must all undertake to change the racist operation of our legal system and the views within it. Until an Indigenous voice to speak on their affairs and Country is heard; until there is a treaty; until truth is told and the historical and ongoing pain of those whose land on which we profit from is recognised – there is no justice in our Country.
Editor-in-Chief Callum Florance
Secretary
Maximus Sandler
Magazine Director
Magazine Sub-Editors: Adhina Jose Lara McKirdy
Aisha Collins
Contributors:
Art Director
Aisha Collins
Adhina Jose
Anna Liu
Callum Florance
Reporting Director
Chilli Pepper
Lara McKirdy
Content Editors: Adhina Jose Aisha Collins Lara McKirdy Melanie Megale
David Ferrell Joseph Oh Lara McKirdy Luke McNamara Marcelo Cabezas Melanie Megale Tabitha McDonald
Particularising By Luke McNamara Sketchy Verdict is Peppercorn’s cartoon series. See More on page 30
Peppercorn Disclaimer Peppercorn is the official publication of the ANU Law Students’ Society (LSS). The views and opinions expressed in Peppercorn are those of their respective authors. They do not necessarily reflect the views and opinions of Peppercorn, the ANU LSS, or any sponsors. Due care has been taken to ensure the accuracy of each article, and that the views and opinions of any named individuals or organisations are taken into account where relevant.
Please contact lsspeppercorn@anu.edu.au if there are any issues.
Letter from the Editor Clarity The theme of ‘Clarity’ for the second edition of Peppercorn Magazine for Semester Two 2023 ties up the theme from our first edition for last semester: ‘Certainty: A Work-in-Progress’. Being comfortable with certainty was difficult given our experiences over the past few years, but we now have a sense of clarity in ourselves, our lives, and our futures. Despite the many challenges facing the world, from wars to climate change and everything in-between, we can use this space to reflect on ourselves and what we have personally achieved. We can embody clarity and a confidence to empower ourselves in this ever changing world – to change it, to make it better. Thank you to Clayton Utz for sponsoring this year’s Peppercorn Magazine, which we re-invested in collaborative and exciting initiatives. The Peppercorn Team also have other highlights to be proud of this Semester. We have: • Established and maintained several ongoing Peppercorn series, including Pepper Grinder, In Law, Laugh Pronounced ‘Law’ (LPL), In Dissent, Peppermint, and Chilli Pepper, and added two more to our series portfolio, Pepperoni Observational News Corp and Sketchy Verdict • Completed the Peppercorn Pedestal, which caused quite a stir with the ANU College of Law and is now housed in the ANU LSS Common Room... • Maintained our presence on campus by plastering it with Peppercorn posters, which also caused quite a stir with the College... • Improved our relationship with the ANU Law Stuents’ Society (LSS) through more active engagement (big shout out to William Carey for being an enthusiastic VP (Admin), as well as the rest of the LSS Committee for getting on board with Peppercorn, including Neha as our awesome President!) • Hosted team drinks at Highball Express, which included a pepper-themed cocktail! • Elevated the status of Contributors by giving them a shoutout alongside the Peppercorn Team
• Made changes to the Peppercorn Constitution (PepCon) – our Terms of Reference – by creating sub-editors as an explicit non-member role, including the Peppercorn disclaimer, and creating a mechanism (with the support of the ANU LSS) to empower us to vote on our Editor-in-Chief for the following year. I want to thank the entire Peppercorn team for their work this Semester, including their strong enthusiasm for Peppercorn and a belief in making this mag our own. I also want to thank our Contributors, who are always coming up with new ideas to share with the world. I also want to take an indulgence to reflect on my time as Editor-in-Chief of Peppercorn for 2023. I started as a Content-Editor for the mag in 2021 and continued on until my current role, writing four articles every semester. I will be graduating with a Juris Doctor at the end of this year (provided all goes to plan) and will be saying goodbye to this mag. Peppercorn has been through some rough patches in the past, but we are well and truly making our mark on our current ANU law students and beyond. For the prospective law student who would like to join the Peppercorn team, just know that this mag is something that you can make your own. You can write and explore ideas however you like, you can take artistic liberties, you can create and engage with the ANU law community. The ANU College of Law has a top-down way of teaching and telling students what opportunities are available to them, so this is your chance to explore your own ideas from the bottom-up and have a go at putting them into action. You are adults and should be treated as adults, but this should also mean you have opportunities to explore and create. We now have some clarity, a moment of reflection. I present to you, on behalf of our amazing team, the second edition of Peppercorn Magazine for 2023. Sincerely
Callum Florance
President’s Welcome
On behalf of the ANU Law Students’ Society, it is my pleasure to welcome you to the second edition of Peppercorn for 2023. This edition once again brings together incredible visual and written content produced and compiled by the Peppercorn team to provide you with an enjoyable and insightful reader experience. The theme of this edition is “Clarity”. As we near the end of the year, I hope that the experiences and hurdles of the past months can be used to provide some clarity to your future self. My time on the LSS has taught me that striking a balance between clarity and uncertainty is necessary in order to meaningfully move forward. As you read this edition, reflect on the facets of your life in which clarity is necessary, and those within which uncertainty may be embraced. This edition of Peppercorn sheds light on several facets of this theme, providing a source of knowledge, self-reflection and entertainment. I would like to thank the entire Peppercorn team, led by Editor-in-Chief Callum Florance, for their time and dedication, not only in the preparation of this edition but for their tireless efforts throughout this year. Peppercorn’s outreach has grown immensely over the course of the year and I am so pleased to have had the opportunity to work alongside the Peppercorn team. Thank you also to the contributors, editors and artists for their invaluable contributions to this edition. I would also like to extend my thanks to the LSS’ sponsors for their support of Peppercorn and the LSS in 2023. Happy reading! Neha Kalele President, ANU Law Students’ Society
Table of Contents: TBC CONTENTS 01 • Acknowledgement of Country and Statement on Historical Wrongs 02 • Team and Contributors 04 • Letter from the Editor - Callum Florance 05 • President’s Welcome - Neha Kalele Community • Peppermints 08 • Alana Cruz (by Callum Florance) 09 • Marcelo Cabezas (by Callum Florance) 10 • ANU Formula Sport (by Marcelo Cabezas) 12 • Dr Laura Dawes (by Callum Florance) 13 • Bita Mahani (by Callum Florance) 14 Pepper Grinder - Hitchhiker’s Guide to Deferred Exams, Extensions and EAPs (by Lara McKirdy) 16 • Learn Something - Why you should consider a Law Clinic in your degree (by Melanie Megale) 17 • Pepper Grinder - In-person exams for compulsory law courses (by Callum Florance) 20 • In Law - Interview with Robin Creyke (by Melanie Megale) 22 • Pepper Grinder - What Do Students Want From ANU Student Media? (by Callum Florance) 24 • Exchange Fever - Exchange student tips and experience at ANU (by Lara McKirdy) 26 • The ‘Law Files’ - An Exposé of Cheating by ANU Law Students (by Chili Pepper) 28 • Peep Review - ANU Law Revue 2023 (by Adhina Jose)
Creative 32 • Laugh Pronounced Law - Fourth Edition (by Chilli Pepper) 33 • Pepperoni Observational News Corp - Second Edition (by Chilli Pepper) 36 • Sketchy Verdict - A cartoon series (by Luke McNamara) 38 • Peppercorn Pedestal - An exhibition (by Callum Florance) 40 • Chilli Pepper 2 - Add some spice to your life (by Chilli Pepper)
Politics and opinion 43 • Inside Scoop on Climate Change Policy - Featuring Frank Mills (by Adhina Jose) 44 • Pepper Grinder - Braddon’s Rainbow Roundabout defaced with tyre marks (by Callum Florance) 46 • Talkin’ bout a referendum - Why you should talk to your family about the Indigenous Voice to Parliament (by Aisha Collins) 48 • Pepper Grinder - All Hail the Vernon Circle Rabbits! (by Callum Florance) 50 • Law students can be creative too - Reflections from a Magazine Director (by Aisha Collins)
Academic 53 • Comparative Analysis of Judicial Independence in Malaysia and the Hong Kong Special Administrative Region (by Joseph Oh) 56 • R v Phillips - An exegesis (by David Ferrell) 61 • US and Australian Practices in Nuclear Non-Proliferation (by Joseph Oh)
Art by Anna Liu
Peppermint – Alana Cruz by Callum Florance
Peppermint is a Peppercorn series where we interview and learn more about ANU law students and beyond.
What have you enjoyed the most from your degree (e.g., culture, specific courses or lecturers, etc.)? The variety of interesting electives on offer has been great. I’ve been able to study some unique legal electives such as legal app development and financial crime law during the course of my degree. What do you do outside of your ANU law degree for work/hobbies/etc.? I work full time so I don’t have much free time! Though I have a dog, Pepper and I like to go out and about on walks around Canberra with her.
What degree are you enrolled in? Juris Doctor What was your background prior to enrolling at ANU? I graduated with a Bachelor of Management at UTS in 2017 and have been working in marketing and most recently in business development in the legal industry. Why did you choose to study law at ANU? After studying at UTS which did not have much of a campus due to the spread of buildings throughout Sydney, I was looking forward to a more traditional university experience with my move to Canberra and the law school at ANU has a great reputation.
What do you think the ANU College of Law could improve on based on your experiences? I personally have had a great experience, especially starting during the COVID period and I thought the transition to online learning was seamless. What piece of advice would you give to students looking to survive and thrive in ANU law? Nothing revolutionary, but keeping up with your readings and attending tutorials makes a huge difference in your learning and staying connected with your class mates. If you could go back in a time machine, what advice would you give yourself before starting law at ANU? Think long and hard if you really want to be a lawyer!!
Peppermint – Marcelo Cabezas by Callum Florance
What degree are you enrolled in? JD Law – Third Year What was your background prior to enrolling at ANU? Before starting at ANU, I graduated from the University of Canberra with a Bachelors Degree of Sport and Exercise Science/Sports Management. I have been working in the sporting sector across combat sports (judo and boxing) since 2019. Why did you choose to study law at ANU? ANU is ranked 18th in the world and 2nd in Australia for Law, so as one of the best as one of the best universities in in the world to study at, I wanted to experience the opportunity to further my education and challenge myself. What have you enjoyed the most from your degree (e.g., culture, specific courses or lecturers, etc.)? Everyone at ANU is extremely friendly, from students to staff, and this has been a positive experience. A positive culture towards engagement within the cohort is something that stands out across my studies. Whether in a tutorial or in a study session, everyone is willing to help each other and engage. ANU’s Law Student Society offers a wide variety of extracurricular activities focused on developing legal skills, and after competing in negotiations competitions for 2 years, it has been a fun and challenging experience. In an environment outside the classroom, you can learn new skills that have real world applicability. Engaging in ANU LSS activities are a great way to engage with your peers. What do you do outside of your ANU law degree for work/hobbies/etc.? I currently work as an Operations Coordinator for Boxing Australia. With a passion for sport, studying law still presents itself useful in engaging with stakeholders and within various aspects of my role.
Outside of work, I compete in canoe sprint, having won State and National titles in the past. I have also been a member of the ANU Formula Sport Team for the past 2 years as a way to learn from other students outside of law. Between work, sport and studies, it’s a balancing act to stay on top of everything but its all possible. What do you think the ANU College of Law could improve on based on your experiences? The support services are there for everyone and I don’t think enough students utilise them. PALS is an underrated resources that really helps. What piece of advice would you give to students looking to survive and thrive in ANU law? To engage with as much as possible at ANU. All academic resources are provided and engaging with content is key academically. Outside of class, engage with the Law Student Society, providing both extracurricular events to boost your legal skills or in the social events that are coordinate (pre/end sem drinks and the law ball). You will only get out as much as you put into your time at ANU and it helps to make the most of it. If you could go back in a time machine, what advice would you give yourself before starting law at ANU? Don’t be intimidated to start. Everyone is new like you and they don’t know anything.
Peppermint – ANU FORMULA SPORT by Marcelo Cabezas
One of the most popular shows on Netflix at the moment is Formula 1: Drive to Survive. You get to see the fights, factions and fierce competition that goes on behind the scenes of F1 racing. It’s introducing a new generation to the sport, but the world of race cars seems so far removed from uni life. Or is it? Well, ANU has a club dedicated to creating and racing a formula-style car! For this edition of Peppermint, we interview and learn more about ANU Formula Sport. What is ANU Formula Sport? ANU Formula Sport began in 2020 and is a student-run team with a task to design, build, and race a formula-style car. ANU Formula Sport aim to compete in the Formula SAE, an annual student design and racing competition hosted by the Society of Automotive Engineers (SAE) since 1980.
This year’s Formula SAE event is held in Victoria, involving 33 university teams. It simulates a situation where a fictional manufacturer contracts a student design team to develop a small formula-style racing vehicle to be evaluated for its production potential. Participating students are to fulfil the task via the Design Event, the Cost-Event and the Presentation Event. Why do people join ANU Formula Sport? You don’t just have to be an engineering student, or car enthusiast to join ANU Formula. Some of the team members want to try new things and become a part of a wider team. There are different teams within Formula SAE that cater to all our members interest. Enjoy more hands on work? Join the chassis or suspension team. Enjoy more online work? Join the IT team. Do you have to be an engineer to join? No. Anyone is welcome
Having a diverse team allows ANU Formula Sport to draw from various disciplines such as finance, arts, business, engineering, and software. All of our team members bring a unique set of skills and experience that help our common goal. There is no expectation to have any prior experience or knowledge when joining the team. ANU Formula Sport run workshop inductions and allow all our members to try new things first hand. Where will the car be raced? Winton Raceway - Victoria How can students get involved and what skills do you need? ANU Formula Sport is always willing to accept new applications to become involved. It advertises and recruits at the start of each semester but will always consider applications at any point. “We encourage all students to apply and within your application express which area of the team they would like to work within. Tech, which is split into smaller specific teams of Chassis and Suspension, Powertrain, Electronics and Aerodynamics. Business, with sponsorship, marketing, and IT. Applications can be made through our submission box on our ANU Formula Sport Facebook page and website.” Website: https://anuformulasport.com/ Facebook: ANU Formula Sport
Peppermint – Dr Laura Dawes by Callum Florance
What degree are you enrolled in? JD What was your background prior to enrolling at ANU? I’m a historian of medicine and science. I have worked in academia at Harvard, Cambridge and Oxford, and then moved to Canberra where I worked as a producer at the ABC and made TV documentaries with Wildbear Entertainment. I’m now back working in academia at the Centre for the Public Awareness of Science (CPAS), right here at ANU. Why did you choose to study law at ANU? Legal issues kept popping up in my history research and writing – patenting drugs during wartime, suing corporations for selling soft drinks in schools, taking Big Tobacco to court, regulating advertising to children, quarantine precautions for the moon landing astronauts (yes, and they make COVID precautions look low-key in comparison)...lots and lots of fascinating medico-legal questions. I was struck and impressed by how legal reasoning functioned and how courts could be part of public health. So I enrolled in a law degree to be able to pursue this research interest even more and better explore the linkages between law, science and medicine. And I really enjoy studying. What have you enjoyed the most from your degree (e.g., culture, specific courses or lecturers, etc.)? ANU Law has terrific lecturers. Amazing lecturers. I really appreciate how much thought, expertise and skill lecturers put into structuring and delivering courses. They’re all great, so a special shout-out some of the lecturers I have had so far including Wayne Morgan and Heather Roberts for the fitting-the-elephantin-a-suitcase trick that is Property, Michelle Worthington who teaches statutory interpretation and HIRAC in Foundations and makes it all super-interesting (and a good welcome to studying law – it was my first course), and Jo Ford and Jelena Gligorijevic for Torts – which, as a really ancient but still evolving area of law is very interesting to me as a historian. Desmond Manderson and Joshua Yeoh have compiled a fantastically insightful course in Legal Theory and deliver it with scholarly panache. What do you do outside of your ANU law degree for work/ hobbies/etc.? I work as a researcher/lecturer at the Centre for the Public Awareness of Science at ANU. I’m working on two large projects at the moment – one, a book on the history of skin cancer and control efforts in Australia, and the other, the history of the introduction of DNA evidence in Australian courts
. Fun fact – the first case was right here in the ACT, in 1989. But there were no Australian DNA experts at the time, so the prosecution flew experts in from the UK to testify! The defence didn’t have a hope to be able to rebut it. Raises interesting questions about novel scientific evidence. Outside of that, I love walking my dog in our local nature reserve, reading books, travelling with my husband, writing fiction, and trying to grow orchids (they’re both beautiful and weird, with strange aerial roots.) What do you think the ANU College of Law could improve on based on your experiences? I think it’s a terrific program, with both range and depth. I’d like JDs to have more scope for research in courses – longer research essays, devise-your-own topic options…that kind of thing. I’ve really appreciated how skilled and knowledgeable our lecturers are and the chance to learn from them and how they model good scholarship. It’s very stimulating to be part of that. What piece of advice would you give to students looking to survive and thrive in ANU law? Try a strange elective. I took Rhetoric: The Art of Persuasion (sadly, the convenor has left ANU so it’s no longer offered) but it was a terrific course and should be the 12th Priestly. If you could go back in a time machine, what advice would you give yourself before starting law at ANU? Enrol in 1998. And, if you can, pay your HECS upfront. Or you’ll still be paying it in 2023...
Peppermint – Bita Mahani by Callum Florance
What degree are you enrolled in? Bachelor of Laws (Honours) / Bachelor of International Relations (Persian Minor) What was your background prior to enrolling at ANU? I grew up on the sunny Gold Coast before enrolling at ANU, and my experience prior to moving down south, other than being a high school student, mostly consisted of youth advocacy. Although this is still a focus of mine now, back then, I mainly specialised in advisory and project delivery with organisations including the Queensland Family and Child Commission, Queensland Curriculum and Assessment Authority. Why did you choose to study law at ANU? The reasons I chose to study law at ANU are probably quite similar to those advanced by my peers. Not only is ANU home to a law school renowned both in Australia and abroad, but it also enjoys a rich culture of advocacy and constant advancement due to its strong research focus. I wanted to study law somewhere that is always improving with unparalleled access to unique opportunities, and I thought Canberra would be the place to be. What have you enjoyed the most from your degree (e.g., culture, specific courses or lecturers, etc.)? I have most enjoyed having the ability to combine concepts taught in lectures with critical thinking and creativity to ideate innovative solutions to complex problems in practical circumstances. I’m fascinated by how the law becomes illuminated during the most important times of people’s lives, and my tutors and lecturers at ANU have helped me to realise this ‘human impact’ in the practice of law. I find the challenge of the law enriching, and I value there always being more to learn. What do you do outside of your ANU law degree for work/ hobbies/etc.? Outside of my degree, I’m blessed to serve as one of the Vice-Presidents of the Law Students’ Society (LSS), and to serve on some other youth advisory councils, including Bravehearts, where I can contribute to preventing child exploitation. Outside of my ‘professional life,’ I love playing volleyball, singing and jamming out to music whilst driving or trying my hand at embroidery, which I’ve recently gotten into. I’ll also play the odd video game or engage in a Netflix binge, but spending time with those I love is best.
What do you think the ANU College of Law could improve on based on your experiences? Bearing in mind that I’m only a year and a half into my degree, and so have not engaged with a great deal of courses, I would love to see more practical opportunities within classes to engage in activities that are seen in practice. Competitions are a great way to develop these skills, but I believe it is pivotal to provide small yet continuous ways to do so in a low-pressure environment that enables students to get instant feedback so they can gradually increase their confidence. What piece of advice would you give to students looking to survive and thrive in ANU law? Many people suffer from imposter syndrome, or fear they won’t succeed in law because they lack connections. Although building connections is important, you must remember that this skill develops throughout your time in university (and indeed life), and that you will succeed in anything you truly commit to. Remember your motivation and back yourself; you’ve been chosen to study law at ANU for a reason, and you deserve to be here! Additionally, engage in competitions and activities offered by the LSS; this is a great way to get more out of your degree, develop your skills, and make lasting connections. If you could go back in a time machine, what advice would you give yourself before starting law at ANU? I would probably remind myself that flexibility and selfcare are key. Oftentimes, when we’re trying to achieve the best results we can, life can become too heavily skewed in favour of work and study, and we can lose sight of the special moments. It is important to make time for things that help you to switch off so that you can be more productive later. From my experiences, having basic routines and not being afraid to ask for help can assist with this.
Pepper Grinder - Hitchhiker’s Guide to Deferred Exams, Extensions, and EAPs By Lara McKirdy
Pepper Grinder is a Peppercorn series providing news and reporting relevant to ANU law students via Peppercorn’s Facebook Page and biannual Magazine. With the second half of the semester bringing assignments you didn’t know about until the week they were due, it’s critical to understand your options when it comes to getting deferred exams, emergency extensions, and also just getting an EAP. Deferred Exams Deferred examinations are rescheduled exams that you may sit weeks to even months after your scheduled exam takes place. These have an extremely high threshold for acceptance, which requires that you must have been “incapacitated” at the time of your exam. ANU policy specifically states that having cold, flu, gastroenteritis or gastrointestinal irritation, menstrual cramps are “insufficient” to satisfy this threshold. To put it clearly, the ANU expects you to be able to do your exam while vomiting in a bucket, buckled over in pain, or passed out over your laptop. If you were unable to sit your exam, firstly contact CoL Enquiries, or the relevant course convener (for non-law exams) to say that you were incapacitated and to put them on notice. The staff at CoL Enquiries are so incredibly understanding, will reply promptly, and will provide you with next steps and instructions for your deferred examination application. Then, you must apply no more than three days in advance or up to three days after your scheduled exam. Although ANU’s business days rule applies, for example Saturday or Sunday do not count in the ‘three days’, it’s advisable to apply as soon as possible even on the weekend because it bodes better for your application. You must apply through ‘Manage my Degree’ on ISIS and follow the prompts to complete the application. To complete the application you will require 1) a personal statement and 2) a medical certificate. Due to the high threshold for successfully getting a deferred examination, it’s strongly advised to visit
a doctor or pharmacist in person, and request that they specify in the medical certificate that you were ‘incapacitated’ or words to that effect so long as that’s also their opinion. Lastly, make sure your medical certificate accords with your personal statement and, as law students, you would know that it’s most beneficial to adopt and apply the exact wording in ANU’s policy to ensure your application satisfies ANU’s requirements. Medical certificates are ‘ironclad’ so always use this as supporting documentation. The ANU Examinations Department will contact you regarding the outcome of your application and then will subsequently email you regarding your rescheduled exam time. Extensions We all know how to get extensions. For extension requests that are less than 10 days, you must apply through the Assessment Extension Request Form unless your convenor specifies an alternative. For extension requests that are for 10 working days or greater, you must use the ECA eForm on ISIS. Like the processes above, you must apply through ‘Manage my Degree’ on ISIS and follow the prompts to complete the application. To complete the application, you will require 1) a personal statement and 2) a medical certificate. As always, your personal statement must accord with your medical certificate. It is really important to remember that you can only apply for an extension up until the day before it is due unless you have a medical certificate (for the assessment due date) or EAP. If you apply for an extension on the day without a medical certificate, it could very well be rejected and you may have to make a late submission or forego receiving a grade for that assessment. With respect to the number of business days to request for an extension, it’s important to remember
that if you’re requesting for a period that goes over the weekend, the weekends don’t count as business days, so for example a 2-day extension from Friday to Monday actually doesn’t include Saturday and Sunday. You can use this fact to get more days to complete the assignment by making a smaller request rather than getting rejected for a larger request. Your convenor will usually allow you to negotiate or will just provide a closer due date when your request is approved. EAPs Educational Access Plans (EAPs) are also ‘ironclad’ and allow you a number of arrangements: - 5-day extensions - Extra writing time in exams - Extra break time in exams - Extra reading time in exams - Successfully get extensions even when applying on a due date - No need to submit medical certificates with extension requests (just EAPs). Eligibility for EAPs are: - Physical, mental and internal disabilities - Mental conditions – depression, anxiety, OCD, ADHD - Other medical issues – migraines, - If you are an elite athlete Firstly, make an account with Access and Inclusion (A&I). Then follow the prompts to complete the registration form. Secondly, make an appointment with A&I. If they don’t email you with a scheduled appointment within a week, contact them here: - +61 2 6125 5036 - access.inclusion@anu.edu.au Ensure you attend your appointment – if you do not attend your appointment to discuss your education needs then you will not receive an EAP. Then, attend a doctor’s appointment with your preferred GP to acquire supporting documentation. Preferably complete a Health Practitioner’s Report, however, other documentation evidencing the ‘condition’ will be sufficient. Upload supporting documentation to your account: 1. On the far left, click on ‘my Access & Inclusion supports’ to drop down the options 2. On the far left again, click on ‘Documents’ and follow the prompt to upload a document Types of supporting documents include a Mental Health Plan, or other doctor’s document that demonstrates the condition or situation. However, a Health Practitioner’s Report is preferable and you will eventually need to submit this anyway. Lastly, sign your EAP. Once your EAP has been prepared, it’ll be emailed to you for signing. Proofread it so that all arrangements are suitable and then sign it and download to keep on your laptop. Good luck If you got this far into the article, then you’ll be in good stead for receiving the support that you deserve during your time at ANU. Don’t hesitate to reach out to ANU if you ever need support, and good luck!
L e a r n
S o m e t h i n g :
Why you should consider a Law Clinic in your degree By Melanie Megale
Imagine yourself, a fresh law school graduate, ready to take on the world of Practical Legal Training and the dream graduate role at a big firm. Where do you even begin? You might stay in private practice, become a public lawyer or even a barrister, hoping that the statutory interpretation rules in Foundations of Australian Law from your first semester are still somewhere in your memory. There is nothing wrong with this pathway of course, but I am afraid you may have let one of the most rewarding aspects of your degree pass you by. Being able to assist those who need your help the most, and as an added bonus, gaining practical experience before you even finish your studies. ANU offers six clinic programs, each varying in subject-matter and placement, in which you can get class credit for undertaking clinical placements. In my time this semester with Canberra Community Law as part of the Community Law Clinic, I have realised three fundamental features about the law that I would have never come face-to-face with in my degree otherwise. 1. Law is hard to understand. Like, really hard. I think we have gotten so used to complex problem questions and AGLC that we may have forgotten that a majority of people out there have no idea how to even find a piece of legislation, let alone understand it. Everyday people, particularly those with vulnerable circumstances, may not even be aware of their legal issues, or how to go about resolving them. When you are meeting with particularly vulnerable clients, you need to be ready to step out of the HIRAC mindset and just speak to people about their problems, sticking to the bare basics. This is an invaluable skill for a law student to have from now, as you start to learn how to translate legal jargon into actually palatable advice. Any of the law clinics offered by ANU will bring you into a variety of workplaces that deal with multifaceted issues, but all of them will give you the opportunity to engage with clients in a way that your standard classes could never replicate. 2. Clients have needs you would have never even thought about. Clients you will be assisting, particularly those that are vulnerable, are ultimately just people. They will have a spectrum of emotions, endless questions and most of all just real-life concerns that might impact them. You will need to build trusted relationships just to get the information you need, and often, you still will not get everything you wanted from them. You will need to navigate barriers such as how to reach a homeless client, or how to advise someone with mental health concerns, or perhaps just giving advice to someone who does not want to hear it. Law is a profession of people, and you cannot escape that. While our problem questions may have prepared us for how to write advice, they certainly cannot teach us the nuances of how to deliver it. A clinic placement in any of the areas will prepare you for dealing with people, and navigating the complicated issues which they face that may affect your work with them. Taking a clinic course has
brought me into contact with such a range of clients with a unique set of problems but has left me more well-equipped in managing relationships with them. 3. Law is so. Much. Admin. For the majority of us, as young lawyers or solicitors, most of the work will be preparing advice for clients. What they have not yet told you is the sheer number of administrative tasks that are simply just a part of the job. Did you call a client, and did they not pick up? Write a file note. Did you start working on advice but only have a draft? Write a file note. Did your client send you a random email chain at 3am last night? Write a file note. These administrative skills may seem simple enough but require a high level of organisation and effort. These skills are honed with time, and a clinical placement is an ideal starting point to practice. You will likely need to write notes during client interviews, or perhaps even tribunal hearings, and keep a thorough record of all your research along the way. Nothing prepares you better for legal practice than throwing yourself in the deep end as soon as you can, and at least with a clinic placement, you have the structure and guidance of your peers and teachers. It is a space where you can engage in an area of law which you may never get the chance to undertake again, such as environmental practice or community law, whilst gaining the relevant skillset for whichever pathway you do choose to take. Learn something So, while our time spent in Torts and Contracts is useful in its own right, there is no class other than a clinic that allows you the space to gain practical skills in a learning environment. It is designed for you to make mistakes and develop your practical training whilst having the rewarding experience of assisting vulnerable local groups in our region. And all of that with class credit, what is there to lose? Apply next year and you just might learn something you never knew before.
Pepper Grinder - In-person exams for compulsory law courses By Callum Florance
Pepper Grinder is a Peppercorn series providing news and reporting relevant to ANU law students via Peppercorn’s Facebook Page and biannual Magazine. In late 2022 and early 2023, Peppercorn approached the ANU College of Law (CoL) with questions around whether online, takehome exams were being phased out. The CoL had just announced its intention to phase out the Juris Doctor Online (JDO) program, which raised questions around whether there was a general push towards more in-person teaching and learning (including for exams). The CoL noted in February 2023 in response to Peppercorn that the Vice-Chancellor and university Senior Executive Group were still considering the broader policy on exams for 2023. For this edition of Pepper Grinder, we will explore the CoL’s recently announced decision to move to in-person exams for compulsory law courses. The announcement In mid-to-late July 2023, the CoL sent the following email to ANU law students:
This email signals the end of in-person exams for compulsory law courses, but provides some flexibility for holding online exams for electives (for now).
Given this, the remainder of this article will be structured with the questions that we raised and the answers provided in that forum.
This email was followed by a commitment to host a forum to answer any questions that students have about this decision. This runs counter to a university environment that emphasises social justice and engaging with communities prior to making decisions that impact them. This was just promulgation of the decision, not meaningful and participatory consultation.
The conclusion As the CoL explains, the return to in-person exams is a solution to several problems, including Admissions Boards, views on a ‘proper legal education’ from the legal profession, and integrity issues that the CoL believe are directly caused by online exams.
The forum Peppercorn initially sent through several questions to the CoL in response to this email, with the CoL responding that these questions will be answered in the forum. The CoL decided to host this forum on the Friday before the start of Semester Two, so it was unlikely that many working or interstate students could have made it. The Associate Dean (Education) Associate Professor Wayne Morgan and ANU CoL Student and Education Support Senior Manager Nicole King lead the discussion and fielded questions.
It is also unclear if the CoL will consult more broadly on a shift towards the use of more intrusive forms of online invigilating, or whether the CoL will just let us know once the decision is made. In a university that heralds itself as producing ‘Thought Leaders’, it is sad to hear the CoL is unwilling to lead on modern and inclusive approaches to teaching and learning and is, instead, happily accepting the views of the Admissions Boards and the profession. One day, we may see the CoL become a leader in legal education... we can only hope.
What are the reasons why the CoL has decided to enforce in-person exams for compulsory law courses? Admission Boards The CoL noted the requirement of admission boards, which are said to accredit Australian law schools and influence decisions around the teaching and learning at those law schools. The issue facing the CoL is that it deals with Admissions Boards around Australia, not just the relevant State or Territory Board like most other Australian law schools. The CoL explains that the Victorian and NSW Boards have recently made clear that law schools should return to in-person, invigilated exams. The CoL referred to the NSW Legal Profession Admission Board’s decision on 30 June 2023 to require its candidates for the Diploma in Law to sit exams in-person as evidence of this. The CoL added that it could not influence Admissions Boards to enter the 21st century understanding of teaching and learning, including the technology that facilitates a more effective and inclusive learning environment. The CoL added this is likely because the Admissions Boards are composed of senior judges of the jurisdiction, who are likely older and have particular views on what a legal education looks like. COVID-19 and online exams The CoL notes the shift to online exams was only a temporary COVID-19 measure, including mentioning this to admissions boards at the time that this was only temporary. The CoL argues that this is not a new policy to move towards in-person exams, but rather a return to the norm prior to COVID-19 and to what it refers to as ‘business-as-usual’. Views of the profession The CoL states that it engages regularly with law firms and a frequent question from the partners at those firms is: ‘When are you returning to a “proper” system of examination?’ The CoL argues that the perceptions of these firms who accept ANU graduates as a pathway into the profession are important considerations.
ANU, with online assessment system companies to finalise which system the ANU will be using. The CoL emphasised it will be its top priority to push for this BYOD model of exams for 2024. The CoL also explained the BYOD model will look more like Proctorio, which is an remote access software that students download to their personal computer and can be used to monitor students on their personal computers. The CoL stated that you can only bring hardcopy items into the exam, noting that students who rely on e-books will be negatively impacted. The CoL added that water bottles will be allowed, no electronic devices will be allowed, and the ‘old-fashioned’ standard of what is allowed in an exam hall will be applied. Did the CoL consult with students before making this decision? If so, what was the outcome of this consultation? If not, why not? ANU policy The CoL believes it is not alone in this and that the ANU convened a working party that met from 2021 until midway through 2023. This involved consultation with ANUSA and the now defunct PARSA, which the CoL noted many law students are in those associations and that this is sufficient law student representation. The working party ultimately recommended to the ANU Academic Board that the ANU should move back to a system of in-person, invigilated exams. Consultation As noted above, ANUSA and the now defunct PARSA were consulted on this decision. The CoL also noted there were student surveys through the Chancellery, and a majority of students wanted exams to remain online. The CoL noted that the views of students are not as important as addressing the issues it has with online exams. The CoL did allow questions and advice from students in the forum, including on how to make the process smoother. However, the CoL explained that a return to online exams will not be considered.
Will the in-person exams be written exams or will laptops be allowed? If laptops are allowed and required to hand in Word documents to Turnitin, what benefits are there to being in-person?
Are in-person exams for electives intended to be rolled out in 2024, or is it the CoL’s intention to enable course convenors for electives to choose the mode of the exam (in-person or online)?
The CoL revealed that in-person exams for 2023 will be written exams.
The CoL explained that it only intends for compulsory courses to have an in-person exam component and that it will not introduce this for elective courses. However, it left open the possibility for elective course convenors to implement in-person exams if they wished. The CoL also clarified that its in-person exams policy will only apply to final exams, rather than mid-semester exams.
The CoL said it sympathises with students not wanting to write exams in booklets. The CoL stated that it has argued that the ANU move towards a system of invigilated exams that are held online, i.e., coming to a venue in-person, conducting the exam on your laptop (‘BYOD – Bring Your Own Device’), and uploading the exam to Wattle. The CoL believes the ANU is moving towards this system, but it has not been rolled out in time for this policy change and will not be in place by the end of 2023. The CoL said it will be engaging, along with other Deans of Colleges around
We understand there are already Education Action Plan (EAP) adjustments that can be made for students undertaking assessments, including those who experience anxiety during timed exams. Does the CoL agree or disagree that in-person exams lead to greater stress and anxiety for students, rather than online exams?
The CoL noted that students who need to sit an exam online were supported in this prior to COVID-19 and that the policy will be to continue supporting these students with online exams going forward.
Will the Col provide any communication around the strengths and weaknesses of in-person and online exams, including advice and resources for students managing this stressful transition?
The CoL said this would require students to be registered with ANU Access & Inclusion and that online exams must be a stated condition in the EAP. If this is satisfied, then the CoL will ensure you are accommodated. The CoL said the only change will be that online accommodated exams will be delivered in a computer lab on campus, which is distinct from the status quo of the past few years where students undertook exams from a location of their choosing.
The CoL did not directly respond to this question, but did note that it will work with course convenors to ensure students receive adequate advice.
The CoL committed to working with ANU Access & Inclusion to make this transition as smooth as possible. Students can type, format, erase, add, and make many other changes in a Word document that they cannot do with the same efficiency and effectiveness in-person. Will the CoL ensure that exam content is moderated to suit a written/in-person exam format? The CoL noted it will be working with ANU law course convenors who will be managing in-person invigilated exams to ensure this is a smooth transition, including what the exams will look like and to prepare students who will be sitting these exams. The CoL acknowledged that the practice of handwriting is largely outdated in the age of COVID-19 and online work, but added there will be some tips shared with students on handwritten exams including writing on every second line and practicing handwriting your exams. The CoL further added that whether an exam was closedbook or open-book would be left up to the convenor. The CoL acknowledged that students would likely not be able to write as much as an online exam, but explained that this is not a disadvantage. The CoL noted that a bad habit that was developing for online exams was copy-pasting irrelevant material, explaining the standard of answers went down compared to handwritten answers. The CoL said this will likely be taken into account in terms of marking. The CoL noted its policy on correcting illegible handwriting in exams that has existed since before the COVID-19 pandemic as a protection for students who are concerned about whether their handwriting will impact their mark.
The COVID-19 pandemic has led to many workplaces embracing flexible work and new technologies, including remote and online work environments. The CoL appears to reject this new era of flexible work and new technologies, including by phasing out the JDO and returning to in-person exams. What is the broader goal of the CoL in emphasising in-person modes of teaching and learning, over online modes of teaching and learning? Does the CoL believe this approach more accurately reflects a modern workplace? In response to a query on whether Admissions Boards should be dictating the learning and teaching requirements of ANU or whether ANU should lead on the learning and teaching of Admissions Boards, the CoL explained that it cannot influence the Admissions Boards. The CoL acknowledged that producing work under time pressure can be achieved in-person as well as online, and it emphasised that in-person and handwritten exam skills are not irrelevant. However, the CoL did not directly address the question of the relevance of in-person exams for the future workplaces of students. The rise of Generative AI (e.g., Chat GPT) and the worries of lecturers in Week 12 of Semester 1 2023 has led some to speculate that the Semester 1 2023 exams were riddled with pickups of student assessments form Turnitin’s new AI detector. Does the CoL believe that shifting to in-person exams is a fair and proportionate response to the risks of AI, given that tools are developing to detect the use of AI and that Generative AI cannot accurately explain the law and will likely lead to greater student failures than passes? The CoL noted that prior to online examinations, there were rarely any academic integrity cases arising from exams. The CoL state there are now allegedly more serious cases arising from exams and a dramatic increase in academic integrity cases directly arising from exams, adding that it likely does not capture all of them. The CoL also noted there are issues of identity that also arise in online exams, as it is unclear if students are producing their own work or reproducing work off others. The CoL did suggest that Generative AI will get better and there is a risk that it will impact exams in the future, but the CoL did not directly answer this question. The rise of Generative AI likely raised concerns for an already overburdened academic integrity system at the CoL and provided another reason to minimise the potential risks that could emerge from the use of AI for online exams.
In Law – An Interview with Robin Creyke By Melanie Megale In Law is a Peppercorn series that features an interview with a member of the Australian legal community. For this edition of In Law, I have the honour of interviewing Robin Creyke, a public law expert and legal academic. Robin has a breadth of experience in academia and advisory work, specialising in areas of administrative law and tribunals, guardianship and enduring powers of attorney, and military law. She is well known for her work as co-author of ‘Laying Down the Law’ and ‘Control of Government Action’, both widely used in Australian universities. She was an academic for about 40 years – not all full-time. Q1: What has your career journey looked like from when you graduated law school to now? After finishing my degree I went overseas to work and travel. I was never going to do anything with the law again. The jobs available were menial jobs. So I started as a typist. But it was in a law office. They took me on because I could properly spell the legal terms. But I could not type and wasted an awful lot of paper. The next job was as assistant and researcher for the editor of The English and Empire Digest, a legal encyclopaedia which no longer exists. Clerical work but a bit closer to the law as I did some research. Lesson No 1: The law can typecast you. Beware! On return to Australia in the absence of other possibilities, I joined the Commonwealth Department of Housing as a clerk. Nothing legal for a change. But after eighteen months, I obtained a graduate position at the then Department of Trade and Industry in Canberra, a year long course. I think I was the only person with a law degree employed by the department. So I found myself being asked to attend an interdepartmental committee on the Law of the Sea; and was the representative of the Department at meetings with industry representatives setting up an Iron and Steel Institute in Singapore. Here I was at 24 with no practical experience representing the interests of the Department against well-qualified and established lawyers! These options kept on coming up. Lesson No 2: You never know what options will come your way. After a couple of years in the Department, I was offered a placement in Washington as a trade commissioner. I would have been the first Australian woman appointed to such a position, but for a number of reasons I turned it down. Lesson No 3: You will face many of these forks in the road choices in your career. Think through your decision and you can always comfort yourself that you made a considered choice at the time.
Several years later I resigned from the Department. By then I was married and had my first child. But being at home with a small child was not stimulating. So I began studying at the ANU – a couple of law courses I had not taken in my degree. Before the end of that academic year, I was employed as a casual tutor in law, a position which lasted for the next eleven years. During this time when I was teaching first year law students, I co-authored ‘Laying Down the Law’ at the invitation of the teacher who had the concept for the book. At the end of that eleven years came another fork in the road. I decided to capitalise on my teaching and publication and to stay at the ANU. Some thirty-five or so years later I was still there. By then I was teaching in a range of public law subjects and had been involved in other publications such as Control of Government Action (soon to be in its 7th edition). I became a national expert on guardianship and EPA laws, advising WA, QLD and ACT on new legislation for their guardianship tribunals and their EPA legislation. I had been asked to contribute as the veterans’ affairs editor to the Australian Legal Decisions series. This in turn led to further publications in military law. I am currently doing the 4th edition of Veterans’ Entitlements and Military Compensation Law in Australia and the 2nd edition of Military Law in Australia. Lesson No 4: Sometimes you need to play to your strengths. Q2: What do you deem as being the key benefits and detriments to life as a legal academic? One of the reasons I chose academia was that I had small children and the pathway offered flexibility. I could go and pick the children up after school and work at night. There was also the ‘one day a week rule’ for all academics, which I believe still applies. The salaries of legal academic staff were meant to be in parity with the profession, but this very soon disappeared. So, by way of compensation, universities
permit staff to have one day a week to be employed in other positions. This way you can use your skills in a range of areas outside academia. Using this option I was able to become a part-time member of several tribunals, a member of the Administrative Review Council, Integrity Adviser to the Australian Taxation Office, and a regulator with the ACT’s Independent Competition and Regulatory Commission as well as a parttime employee in a law office. A further advantage is that it is still reasonably easy to get leave without pay. At one point I took five years off to become a full time member of the Administrative Appeals Tribunal. Opportunities like this enable you to learn about other fields and develop contacts. As you develop a reputation as a lawyer, particularly like me with experience with tribunals, you get asked to speak at conferences, and this further enhances your contacts. A disadvantage is that using this option means you miss out on a lot of the coffee-type interactions on workplace issues (in my case academic matters) between staff. These informal contacts can often act as a stimulus for new ideas. This possibility has diminished during and since COVID when academic staff appeared to be attending the institution less and less. Nonetheless, this is changing, and there is still scope in a shared workplace for collaborative work with and to be enriched by others that you respect. Lesson No 5: Academic life encourages a flexible work life.
balancing interests. All of those qualities that your legal training imparts are valued in multiple ways in the community.
Q3: How has the academic profession changed over the years in your experience?
Q5: What would your advice be to law students looking for a role in such a competitive job market?
When I started as an academic at the ANU, there were six public lawyers in the College of Law. I do not know how many would count themselves as public lawyers now but probably three to four at most. This change means as an academic I needed to specialise. I chose tribunals on which to focus. I have now been a member of at least seven tribunals or adjudicative bodies. In addition, you need to spread yourself more widely across legal areas. I ended up teaching a wide range of public law courses, did some teaching in Torts, Contracts, constitutional law, medical law as well as military law. That makes you a more rounded legal academic. As the law changes, you have to keep up to date. Today there is a lot more emphasis on intellectual property and AI. Communication and technology areas are moving fast, and having a feel for international relations is certainly increasingly important too. It is important to keep an eye out for emerging developments in the law. Lesson No 6: Keep a weather eye out for what is current or emerging.
Gain a practising certificate after graduating even if you do not intend to practice. This is one bit of advice I would always give graduates. In my own career, I could have been legal advisor to the Australian Institute of Health and Welfare or on the Guardianship Tribunal here in Canberra, but I did not have a practising certificate when I was invited and both positions required admission for a number of years. It is an insurance I would strongly advocate. I suffered from the belief that I was never going to get close to the law and ended up discovering that the law has tentacles. I could have taken different pathways had I realised this earlier. I would also suggest you need to make your CV as interesting as possible. Have part-time work and voluntary activities in different or related fields. This sets you apart. You will need something to capture interest in the face of the competition. You might be lucky to have an interviewer who is also interested in these areas. If you exchange views on a common topic such as your voluntary work, this may mean you and the interviewer click in the interview – and the rest is history! It does not have to be a law related activity. In fact, it is sometimes better that it is not. The fact that you can balance study, volunteering and parttime work gives an indication that the pressures are not going to get to you in the workplace. That too is a factor important to employers. Being curious and continuing to be curious is also a really important personal characteristic, which will take you into all sorts of areas. Backing yourself can also be important. Lesson No 8: Believe in yourself and your future.
Q4: What are some key tips you have for current ANU law students thinking about their future pathways? The public vision of the law is certainly that those who study end up in the private sector, the public sector or the bar. Judge Judy and other media have not helped with that perception. The reality is that the possibilities are so much broader. Every pathway you take there is a different area for learning, and that is what is so exciting. Even having a law degree at all will give you an edge over someone else at a job at David Jones during the holidays. They will view you as responsible, that you understand people, have judgement, and are capable of
I think it is useful to test your own vocation in the law. Sit in on courts, get a clerkship or be an associate to a tribunal member or judge. That way you will get an insider’s view of law in action. But you will also be able to estimate whether it is where you want to go next in your career. Positions such as these will test your competency and interests in those areas. You may discover, for instance, that the law in practice and the law in academia do not have too much to do with each other. The law in practice is about managing clients and businesses, balancing interests of clients and strategic thinking. These may become your strengths and they are transferable skills. One of the advantages of law is the training in the importance and the subtlety of words. Most areas of knowledge in the world are about words – knowing what they mean and understanding them in their context. Exploiting these skills which your law training gives you is an advantage in a host of areas. Writing, editing, managing your own business. You never know what opportunities will be around the corner. Maintaining a breadth of interests will make you more open to those possibilities. Lesson No 7: Widen your interests and your options will expand too.
Pepper Grinder - What Do Students Want From ANU Student Media? By Callum Florance
Pepper Grinder is a Peppercorn series providing news and reporting relevant to ANU law students via Peppercorn’s Facebook Page and biannual Magazine. If you’re in ANU student groups like ANU Schmidtposting, you probably have an opinion on what you like and dislike about ANU student media, or what’s working well and what’s missing. Some ANU student media organisations even get $100,000+ in funding to deliver media to you. But is there value for money in what you’re getting? On Wednesday 24 May 2023, we went straight to the source and asked ANU students on ANU Schmidtposting what they want from student media. Here’s what we found. Definitely Want • The most popular wants were (9%+): • News and reporting on issues inside of ANU (20.62%) • Review articles (13.84%) • ANU student satire, comedy and memes (12.71%) • Interviews with ANU students, academics, etc. (9.32%) • Hosting or covering ANU student events, including creating new events (9.04%) It’s unclear whether the popularity of these responses reflects what students are currently enjoying from ANU student media, or whether they want to see more of that content. Either way, ANU students definitely want news and reporting on issues within ANU (e.g., student executives, colleges, etc.), review articles (e.g., on-campus food reviews, student music reviews, etc.), ANU student satire/comedy/memes, interviews (e.g., with ANU students, academics, etc.), and hosting or covering ANU student events/creating new events. Some Want The mid-tier wants were (2-8%): • Articles for specific colleges and communities (8.19%) • Creative and visual works like drawings, art and cartoons (5.65%) • Hearing from, and engaging with, underrepresented voices at ANU (5.09%) • Crime and justice reporting, including crimes at ANU or justice issues on-campus (4.80%) • Academic articles (2.54%) • News and reporting on issues outside of ANU (2.54%) This could be a smaller group of students who are loyal fans/consumers of, or are interested in, that content. This doesn’t necessary mean students don’t want the content, but could reflect some existing gaps in the ANU student media market. Some ANU students want articles for specific colleges and communities (e.g., residences, STEM, etc.), creative and visual works (e.g., drawings, art, cartoons, etc.), to hear from and engage with underrepresented voices at ANU, academic articles, and news and reporting on issues outside of ANU. Not Want? The least popular wants were (0-1%): • Opinion articles (1.70%) • Podcasts (1.41%) • Radio (1.13%) • Videos, including video essays, video interviews, and student films (0.85%) • Hosting or covering events beyond ANU (0.57%)
Although these were the lowest in popularity, it’d be misleading to say that students definitely don’t want this output from ANU student media. There could be committed students who want to make the content for their own enjoyment/experience and don’t care too much about clicks, listens, reads, etc., as well as an oversaturation in these areas to the detriment of the definite wants from ANU students. Either way, not many students seem to want opinion articles, podcasts, radio, videos (e.g., video essays, video interviews, student films, etc.), and hosting and covering events beyond ANU. Conclusion ANU student media is (largely) unpaid/unfunded and relies on work from committed students in their spare time, so I wouldn’t criticise the supply-side of ANU student media too much. There may also be an overlap between the supply and demand in student media, with some students producing and consuming in the same area. However, the demand-side, what ANU students actually want, is important. ANU student media should continually reflect on what they’re delivering, why they’re delivering it, and whether they’re investing those countless unpaid hours from committed students (and student funds) in what students want. If you don’t understand your audience, why are you doing it? *** Poll Link: https://www.facebook.com/groups/ANUstalkerspace/permalink/5958119900983917/ Poll Timing on ANU Schmidtposting (Facebook): Post – 11:02am Wednesday 24 May 2023 Poll at time of writing – 6pm (COB) Wednesday 24 May 2023 Poll Results: Results were rounded to two decimal places. No ‘Other’ options were recorded as at publication. Poll Question: What do you want from ANU student media? (choose as many as you like) Poll Options: News and reporting on issues inside of ANU (e.g., student executive, colleges, Chancellor and Vice-Chancellor, etc.) News and reporting on issues outside of ANU (e.g., political, regional, local, etc.) Opinion articles Review articles (e.g., on-campus food reviews, student music reviews, etc.) Hosting or covering ANU student events, including creating new events Hosting or covering events beyond ANU Creative and visual works like drawings, art and cartoons ANU student satire, comedy and memes Crime and justice reporting, including on crimes at ANU or justice issues on-campus Interviews with ANU students, academics, etc. Videos, including video essays, video interviews, and student films (e.g., action, thriller, etc.) Articles for specific colleges and communities (e.g., residences, STEM, etc.) Podcasts Hearing from, and engaging with, underrepresented voices at ANU Academic articles Other (post in the comments) Radio First-day results: Wednesday 24 May 2023 Second-day updated results: Thursday 25 May 2023
Considering she was not a polyglot (yet), Ruby looked at English-speaking universities, and got her first preference at University College, Dublin. Ruby had several strategies in choosing Dublin. First and foremost, the university had great courses to supplement her degree. One of the main airlines was RyanAir which provides cheap flights to all other locations in Europe. University College, reportedly like ANU’s other exchange partners, was very easy to transfer course credits earned on exchange. In fact, ANU confirms all your course credit transfers long before you arrive in your exchange country. The process is very easy. By Lara McKirdy Setting the scene As I pull up to a humble home in O’Connor, I’m greeted by Ruby Saulwick, a third year IR/Economics student who recently returned to bitter cold Canberra after a warmer exchange in Dublin. As a Senior Reporter at Woroni, she was ready to tackle my lengthy (and somewhat tedious) questions. As I head up the old, stone steps and flowery bushes to the entrance of the house, I’m greeted by Adam Champion, another BNOC, and I’m handed a coffee as I walk through the door. “We have to start with a tour.” Their lovely home had flowers (and some Lego) in every room, complemented by a wonky yet charming ceiling. “And this is where we think we have squatters,” Adam said as he pointed towards a suspicious, boarded-up basement before leading me to some unaesthetic backyard sheds. So now that I was adequately frightened and intrigued, it was time to commence the interview. Why go on exchange? Ruby ultimately chose to go on exchange to the University College, Dublin. After initially applying for Sciences Po in Paris, the lack of Parisians wanting to come to Canberra (understandably) set her back. After doing French in her IR degree, as well as in school, she was ready to put her skills to good use. Ruby reports that ANU was very helpful in providing alternatives for her exchange, notably, exchange partners that had applicants wanting to come to ANU, but didn’t have an ANU student to exchange for.
Adam chose Sciences Po in Paris, because, well it’s Paris! He spent a semester learning French for the first time but did not end up using it particularly often while in France. Like Ruby, Adam easily got all courses accredited. Unfortunately, he reported that a friend who had undertaken an exchange process through the University of Melbourne to Amsterdam had struggled to get course credit. They went back and forth with Melbourne University, which eventually budged. I think this anecdote is proof that we have a strong and well-organised exchange program here at ANU, so no need to worry about losing any course credit and not finishing your degree on time. Applying for exchange The application process is to provide your top five preferences for exchange from a list of ANU’s exchange partners (only). Consider your preferences based on where they have your degree and courses you want to take, but it’s reciprocal. This can be a very timely process because different exchange universities have different GPA thresholds to be eligible, only offer specific courses for specific degrees, or have a range of other considerations, such as no guaranteed accommodation. The most nail-biting part of the process is there must be at least one exchange student coming to ANU from your preferred exchange university in order for you to attend that exchange university. This is the issue that Ruby ran into. Thankfully, ANU has a plethora of exchange partners in many countries across the world, so you’ll be spoilt for choice. Culture shocks Ruby thankfully didn’t experience any culture shocks. The Irish (unsurprisingly) also have a heavy drinking culture, pub culture and bar culture. Ruby was fortunate enough to have experience travelling internationally,
and so was quite used to adjusting to different cultures Heading to Dublin, Ruby didn’t have to get a visa - only in different countries. Not knowing many students in your an Irish resident permit. ANU provided information on exchange country may make you nervous to go on ex- this process, but unfortunately cannot provide any perchange, but Ruby advised that keeping an open mind, try- sonal assistance or answer any personal questions due ing everything that comes your way, and not being afraid to the sensitivity of the subject-matter. ANU also cannot to ask questions were key things to remember in tackling assist with foreign accommodation applications. exchange jitters. With apartments in Paris being quite pricey, Adam When asked whether students just go on exchange to opted for a long-term Airbnb with Stefan, an eccentric party, Ruby reported that she only knew of one friend, 50-year-old Frenchmen and guide to Paris. A contributwho had been to Dublin previously, who was relatively ing factor in his decision was due to Sciences Po’s deintoxicated throughout the semester. cision to inform students of acceptance in October-November. This was reportedly highly stressful because it Adam, also fortunate enough to have been able to travel left a few months to find decent accommodation and internationally before, knew many of France’s idiosyncra- book flights. It was also difficult because a verified forsies before touching down in Paris. A self-described “Man eign address had to be provided on the visa application. of the World”, he already knew that France smells. And Adam ended up having to attend a Melbourne Customs does not smell good. Office personally in late December to ask them to finalise his visa application. His passport was subsequently France aside, Sciences Po had a highly present and sent to Sydney to be stamped with the visa information large international student and exchange student cohort, and was returned to him barely one day before he was where everyone wanted to meet new people. Knowing to fly out of Melbourne. that exchange can be daunting, he suggested that having a quiet confidence in adapting to new places and taking The highs and the lows things as they come is the best approach to getting used When asked about horror stories, the two kept things to a new place, new culture and new people. short and sweet. Adam unfortunately experienced ‘stomach issues’ while on a short intercontinental flight, Trials and tribulations and Ruby encountered some small challenges during For context, I’d previously heard that it can be really diffi- solo travelling. While Ruby secretly preferred the univercult to get accommodation at European universities. For sity portion of exchange, she was proud to have pushed example, France has a lot of scam advertisements permit- herself out of her comfort zone while solo travelling and ted on official university websites. travelling with friends - she loved her time overseas. She really loved being immersed in a new place and Ruby, a ridiculously organised and put-together 21-year- learning new things in a different country. old, booked accommodation way in advance. She had heard early on that on-campus accommodation was in- When Adam arrived at his Airbnb, Stefan made him feel credibly hard to get. She quickly decided that she didn’t very welcome. Stefan gifted him French cookbooks and want to live on campus, and recommended searching introduced him to all of the local markets and bars. By online for private apartments run for students. While a the end of his exchange, he felt like a native Parisian. little more expensive than perhaps your regular apartment, the Dublin student apartments were incredibly Homecoming comfortable. Each room had its own bathroom and the At the end of it, Adam received a lovely message from shared kitchen and living spaces were only shared with his roommate on Airbnb thanking him for his generosity, three others. This is certainly fantastic in comparison to kindness and company. While this read like something the infamous 10-bedroom shared apartments I’ve heard of a love letter, it was an honest and touching end to a about in Amsterdam. fantastic time on exchange in a foreign country. A big part of it is the people you meet and connect with, who Most exchange universities have their own exchange net- you make an impact on and who makes an impact on working programs in which exchange students go through you. orientation, meet new people and build a community. Ruby highly recommended the University College exchange Ruby felt relieved to come home after being away for student program, as she met numerous other like-minded a lengthy seven months. With a return journey of 52 exchange students and forged really strong friendships. hours, the Sydney-Canberra Murrays bus was the final leg of the journey. Ruby felt that she was home when The visa debacle she watched the clouds part along the Hume. Arriving Reportedly one of the most challenging and stressful as- in Canberra and looking down Northbourne Avenue topects of the exchange process is acquiring the correct wards the Telstra Tower, she was overcome by a feeling visa/permit. - ‘it’s good to be home.’
The ‘Law Files’ - A n Exposé of Cheati ng by Co llege of L aw By Chilli
Several months ago, I complained to a classmate about the normal aches and pains of being a law student. I was initiating the university equivalent of a mating ritual - I complained and she would complain back, like two exotic birds bobbing our heads and flapping our wings. “My summaries are so far behind.” Squawk. “Oh my god, I haven’t even made my case notes yet.” Squawk. “I’m going to fail the exam at this rate.” Caw. This was only partly an exaggeration for the sake of ceremony. I hadn’t opened my textbook yet, let alone started preparing for the exam. She very kindly responded by offering me something she referred to as the ‘law file’. This wasn’t a part of the dance. “What’s the ‘law file’?” “Oh, it’s like a Google Drive where ANU college students compile summaries, exams, exemplar responses, that kind of stuff. A few of the halls have them.” I politely declined, but spent the rest of the class feeling like I was suddenly standing on the outside of some large conspiracy. Was this common knowledge at the ANU? Were the ‘law files’ another way students from more prestigious halls had the upper hand over their colleagues? Or, had every law student agreed to keep this quiet, and I was the only one naïve enough to assume we were all doing the work? Undoubtedly, the latter was untrue, but the feeling was the same. I felt like the only first grader not invited to the popular girls sleepover. And just like a first grader, I was going to be a whiny shit about it.
Students
Pepper
In the coming weeks, I found myself bringing up this discovery to anyone who would listen. I needed everyone to feel the same way I did - that this was unjust and unfair, and all too familiar to the ANU’s ethos. Some people did express shock. For others it was jealousy, followed by questions of ‘do you know if there is one for my degree?’. A majority were completely unsurprised - they shared stories of friends who complained they wouldn’t have these pre-prepared summaries for their exchange courses, to classmates who mysteriously possessed complete notes weeks ahead of the content. It was apparent this was the worst kept secret of the ANU. However, it was the institutionalisation of this practice by some of the most expensive residential halls which had my feathers entirely ruffled. We know there is a $260 difference between the weekly rates of the most and least expensive undergraduate accommodations. We know high socioeconomic status (SES) students are more likely to be accepted into university than those with lower SES. We also know students with higher SES are less likely to drop out than those with low SES. In all likelihood, it is the university students who are already ahead benefitting from these completed course notes. However, while these files represent another homerun for those economically advantaged, they also reflect a complete disregard for the academic rules in place to equalise that playing field. We’ve all been warned repeatedly, and with great emphasis, of the consequences attached to being caught cheating at the ANU. The Academic Integrity Module is an online subject we all completed in first year. From a fail mark, a strike on your academic record, to the extremity of suspension, a fear is instilled in us before we even get to sit in a university classroom. For law students, this sword dangles from a precariously thinner thread - we are cautioned that, for us, a breach of academic integrity can result in refusal of admission to the legal profession.
The logic behind this flows both from the moral and practical requirements of being accepted into legal practice. The first, being the ‘fit and proper person’ requirement, intends to ensure potential lawyers don’t have a disposition to dishonesty and malfeasance. A requirement of the same nature can be traced all the way back to Ancient Rome and the Theodosian Code, but the reasoning still holds[1] : if you want to be one of society’s representatives of justice and truth you can’t also be a big fat liar. The practical aspect is best explained by an analogy I have thrown around on a couple of occasions. That being, if you found out your surgeon had been caught cheating on their ‘Introduction to Surgery’ exam, you probably wouldn’t be jumping on to the operating table. But do these files constitute cheating? While sharing notes won’t be found in most definitions of the word, it does fall under the often-overlooked aspect of academic misconduct called collusion. The ANU College of Law, consistent with the Academic Integrity Rule 2021 (‘the Rule’), defines collusion as ‘the involvement of more than one person...in an instance of academic dishonesty.’ Academic dishonesty is not a term defined by the Rule. While this leaves us very little to go off – thank you Brian, very cool – the ANU College of Law gives us some more concrete examples. They explain that while not an assessment itself, class summaries which ‘you create in the context of assessment, must be your own work’. While you can discuss the content of a summary, ‘the product which you take into an exam must be your own’. There it is, in plain writing, that shared class notes are collusion. I don’t expect everyone to agree that the ‘law files’ are cheating. For classes other than law they may not be, as many other fields of study encourage collaboration
and teamwork. However, reading and summarising cases, extracting legal reasoning, and applying tests, is the majority of our work as students of law. One could also argue that through relying on these files, students won’t actually learn to critically engage with the law. Nonetheless, I refer you again to the Rule, s 12(2)(m), which defines academic misconduct as ‘engaging in conduct with the intention of gaining…an unfair or unjustified advantage’. Students who use the ‘law files’ are potentially saving themselves up to fourteen hours a week in law readings. We must acknowledge that the ‘law files’ create an absurd disparity between the work loads of those who have them, and those who don’t. This may not seem like a big deal to some people. It may seem like a very big deal to others. However, the fact that students at some of ANU’s most elite colleges have, for years, carried lighter loads than their peers cannot be viewed as anything other than further proof of the systemic benefits of socioeconomic privilege. The girl who offered me those notes wasn’t ill intentioned. She genuinely believed she was doing me a favour. When I asked her, she hadn’t even known the ‘law files’ could be considered cheating. And yet, you can’t help but feel a little bit angry at the perpetuation of this advantage by your fellow peers. You can’t help but feel a little bit angry that there will always be another safety net that you aren’t privy to. You can’t help but feel a little bit angry that cheats have prospered, and will continue to prosper, at the ANU.
[1] Deborah Rhode, ‘Moral Character as Professional Credential’ (1985) 94 Yale Law Journal 493.
Peep Review - ANU Law Revue’s All’s Fair in Love and Law (2023) By Adhina Jose
Peep Review is a Peppercorn series for reviews of ANU law student events and beyond. As part of its incredible 51st year in 2023, the ANU Law Revue’s All’s Fair in Love and Law did not disappoint. An incredibly funny, fast paced, witty show that captured hearts as well as left all of us in a state of laughter. This year’s theme showcased the talent and variety of sketches that were done by a fabulous cast and crew who clearly put in an incredible amount of time and thought into creating Law Revue for a university audience. Law Revue is a comedy show created by students for the wider ANU community, that seeks to engage individuals for a memorable night. As Peppercorn was given the opportunity to attend the show, I was taken aback by the sheer talent I saw and also the engagement from the audience that lifted the atmosphere so much more.
The show was directed, produced, and fully created by ANU students and it could be seen from the get-go how much talent it encompassed. This included: 110 pages worth of original script, more than 300 original sketches and songs being written, official songs performed by a student run talented band, and many more choreography, costumes, technical expertise that was done. From the moment the show began, we were guaranteed some great entertainment. There were a few memorable sketches that caught my attention this year, and no they were not overly related to the law as one would suspect. As a sucker for some Gen Z comedy combined with a few songs and dance, those sketches were my favourite. The sketch ‘Dream Girl’, which consisted of the very talented director Layla Brady singing an original combined with the extremely talented and incredible guitarists, was one of the sketches that showcased the exquisite talent of the group. Another sketch ‘beyond reasonable doubt’ was also a stand out, as it brought to life our very real unhinged thoughts that, especially as a Gen Z, comes out as comedic, sarcastic and real.
Interestingly, the ‘Law’ aspect of ANU Law Revue appears to be an historical theme from when it started as an actual law revue, as at times there was very minimal legal sketches in the show. Maybe a name change is a little too late, but it might also set expectations a bit considering there are other competing ANU subject-matter revues (ANU Arts Revue, ANU Science Revue etc.). The ANU Law Revue has a half century of history behind it, so I’m sure a name change this late in the game perhaps wouldn’t deter people from seeing the oldest/ biggest revue on campus. As this was my first time attending ANU Law Revue, although it has existed consistently for 51 years, I was blown away and would highly recommend this show to anybody who is in for a night of comedy and entertainment. While I was surprised at how the law not the main theme, with the nuanced reflections and attitude of the law and the sprinkle of law student dialogue in the show – ANU Law Revue still lived up to its name. From now on, through seeing first-hand what an incredible event Law Revue is, I’d encourage everybody to attend to have a night with nothing but good vibes.
CREATIVE
Art by Anna Liu
Laugh Pronounced ‘Law’ – Fourth Edition By Chilli Pepper
Baden Scales of Red Flags The Baden Scales are a useful way to evaluate whether your friend is picking up on red flags or whether they are choosing to ignore them. 1. Actual knowledge – Your friend acknowledges the red flag 2. Wilfully shutting one’s eyes to the obvious – Your friend pretends like the red flag doesn’t exist but it genuinely does like it’s so obvious wth 3. Wilfully and recklessly failing to make such inquiries as an honest and reasonable person would make – The red flag definitely exists but your friend doesn’t ask anything or question it like... what? 4. Knowledge of circumstances which would indicate the facts to an honest and reasonable person – You tell everyone else about the red flag and they’re like “yeah that’s a red flag” so for sure your friend must know it’s a red flag I mean come on 5. Knowledge of circumstances which would put an honest and reasonable person on inquiry – Your friend like actually witnesses the red flag and actually heard that comment the person made but still never questioned it and everyone else who you tell about it was like “that’s actually messed up I would have said something” Justice Jane Austin If you accidentally take a copy of Jane Austin’s Pride and Prejudice from the Airbnb you rented, how will you be charged? You’ll be charged without Pride and Prejudice save as to costs Court Leaves
Pass the Bar
What do you do when you need to bring a leaf into the courtroom? You seek leaf of the Court
What does a lawyer do when they’re walking around and trying to avoid a drink? They pass the bar.
What do you do when you have lost your leaf in the courtroom? You seek leaf in the Court
What is the next step for a nerdy lawyer? They pass the Bar.
What do you call your leaf when you find it? Special leaf
What does an in-house lawyer with a chocolate bar at the office Christmas party do to win over their boss? They pass the bar.
Pepperoni Observational News Corp – Second Edition By Chilli Pepperw
Pepperoni Observational News Corp is a Peppercorn series that delivers satirical news and reporting via Peppercorn’s Facebook page and biannual magazine, and definitely has no affiliation with Woroni or the ANU Observer and any allusions to affiliations with these news outlets are false and misleading and should not be made or considered. Our top stories for Semester Two, 2023... Tuckwell Scholar has a rural background and definitely isn’t privileged ANU is becoming less accessible to low-socioeconomic status (SES) students. Canberra cost-of-living pressures make renting and student accommodation only accessible for non-Canberran undergraduate students whose parents can afford to send their kid to the capital, so it’s no wonder that fewer and fewer low-SES students are attending (and continuing) at ANU. That’s why scholarships are so great, because non-Canberra students who otherwise couldn’t attend ANU can make the move in a more accessible and more affordable way. Those with plenty of intergenerational wealth can afford to move, but those without often miss out. Tyrell Wellington IV, 19, is a Tuckwell Scholar and comes from regional Victoria. “I had a hard life being sent to boarding school from our family estate *ahem* farm during high school,” he said, “so I was worried about transitioning to life in the big smoke when the time came for me to go to uni.” “I went to Scotch College in Melbourne as a fourth-generation legacy student,” Tyrell noted. “But I grew up having a rough life tending to our family farm.” We checked out Tyrell’s public Instagram page, featuring a sprawling estate with a lake, several four-seater utes, stables, guest houses, and only three or four cattle. ANU scholarships were never intended to support low-SES students, mainly catering to schools where the teachers are paid in line with their ability to game the system and get their students higher ATARs. Low-SES students who make it to uni often had to figure out that system themselves in order to succeed due to an underfunded public school structure that incentivises high-performing teachers to go private in order to get compensated, making the low-SES students more resilient individuals but also in need of additional support to complete their degrees. We asked Tyrell, a Burgmann College resident, whether scholarships should be reserved for students who aren’t privileged. “I’m definitely not privileged,” he said with indignance, “because I’m a regional student and need a bit more support than other kids.” We also checked out Tyrell’s family Wikipedia page, which says his great grandfather was a mining magnate who purchased their family’s large estate for 100 pounds back in the day. Real estate websites estimate his family’s entire estate to be worth around $15-20 million.
Unclear if desk-hoarding student is really just living rentfree at Chifley Library In the depths of a packed Chifley Library, a lone cluttered desk is left abandoned with a laptop, a backpack, a textbook, some clothes, and a bath towel. This phenomenon is known as “desk-hoarding”, where students take possession of a desk just short of ownership. James Yummy, 19, is in Chifley Library polishing off an assignment. “I’ve been here for three hours and no one has showed up,” he says pointing towards the lone cluttered desk. “I think there might be food stored nearby, because there is a Hansel and Gretel-level crumb trail leading from the bookshelves over there to the desk.” We witnessed a number of students walk briskly up to that empty desk, only to turn around dejected in search of a free spot. In a sea of taken desks, desk hoarders are really taking up some valuable real estate. “We’ve seen a rise in the number of these desk-hoarding students... I’m almost certain they’re living here rent-free,” says Chifley librarian Gwendoline. “I sometimes see wet footprints from ANU Sport through the entrance and up to the quiet desks on the top level.” Gwendoline noted that around 18 eviction notices have been issued to these desk-hoarding students since the start of the Semester, adding her concern that this might push them onto the streets or into the classrooms. She has some sympathy for them: “I sometimes bring in a double serving of my leftovers and leave it for the desk hoarders, only to return later that day to a kindly washed IKEA glass container and a handwritten note of thanks.” Gwendoline once even received mail from a postie addressed to one of the desks, which she kindly delivered by hand. With such limited supply of desks and a high demand, some are comparing this with the housing crisis in Canberra. “Student housing is unaffordable, which has made ANU more inaccessible than ever,” said an anonymous student, who declined to comment on whether they were in-fact a desk hoarder.
“This is where 24-hour libraries can step in to save students The ANU Executive explained that students will need to send who would otherwise drop out of uni in search of work and a assessments and exams by carrier pigeon if they wish to stable income.” complete their degrees off-campus. Students on-campus can sign up for tutorials on paper lists nailed to Chifley Library at The anonymous student added that there was a plus side, the start of each semester, and grades will be announced “ANU students are passive aggressive and just mumble via the ANU Town Crier every Monday at 8am in Kambri. bad things under their breath about desk hoarders rather than touch their stuff... to be honest, it’s safer than liv- ANUSA’s “Bright-R-Future” election ticket really just Labor ing in Downer with all of the armed robberies going on.” Right hacks in disguise There have been indications of the simultaneous rise of another phenomenon called “investment desking”, where parents invest in desks so that their children can always have a desk secured when they need it.
ANUSA is a powerful organisation, handling $2.5 million in revenue from their 2022 financials and made even more powerful after swallowing up PARSA’s functions and funding in July 2023. So why do students barely engage in ANUSA elections?
“Our family owns some investment desks on the ground floor of Chifley,” says 20 year-old Burgmann College resident Matilda Juul of the Juul Vape fortune. “I think they’re good long-term assets to invest in given the limited supply and high demand in our current economic climate.”
Ken Dollson, 23, is running for ANUSA President on the “BrightR-Future” ticket for 2023. We asked Ken about the disconnect between student engagement at elections and ANUSA’s powerful role in the ANU student community. “I honestly don’t know,” he said with a slight grin. “I mean, ANUSA is boring so maybe students shouldn’t *ahem* don’t want to engage.”
There was even an historical case of adverse possession at Chifley Library in the 1980s, where a part-time double degree student took possession of a desk for 12 years and eventually became the legal owner. The ANU eventually traded some reasonably priced student accommodation to the student in exchange for the desk.
Low student engagement in student politics has for decades created incentives for the student political party and activist clubs at ANU to jump on ANUSA election tickets together and call themselves “ANU Pool Party” or “You Are The Future” or something else inoffensive and simple. In reality, these tickets run with the resources, support and involvement of those clubs, It is clear that desk-hoarding students need a good deal on and the disengaged student community is left unable to make ANU student accommodation to avoid this phenomenon grow- an informed decision about who they are actually voting for. ing further. Some economists noted authorities would rather see a market correction than invest in adequately priced “Our name Bright-R-Future means that we believe in a student accommodation, with the desk market bubble burst- brighter future for all ANU students,” Ken, who returns to ing. Hopefully action is taken done before the recession hits, his parents’ house in Vaucluse every semester break, exotherwise we will see more passive aggressive ANU students plained with a slight grin. “We want to enhance the power than ever. of tomorrow and ensure all students excel into the future.” ANU exec announce student pencil subsidy after laptops banned from lectures, exams In July 2023, the ANU Executive announced that all technology was a danger to society and that all assessments, lectures, and exams will be technology-free going forward.
We investigated the “Bright-R-Future” ticket and found all of the members are actually just current and former ANU Labor Right Club bosses. This has not been disclosed in any of their campaign advertising, with their posters and pamphlets just featuring hot pink colours with cartoon logos stars everywhere.
When asked whether “Bright-R-Future” is really just the ANU Labor Right Club running for ANUSA positions, Ken’s grin disappeared. “How dare you,” he exclaimed. “I’ve served my time doing cold calls and doorknocks for ACT Labor Right candidates, so the club should return the favour by Gabs Christie, a biology undergrad, was shocked at the putting me in charge of a million-dollar organisation.” news. “I honestly thought this was satire,” she said. “How Now that ANUSA is bigger and more powerful than ever, can a world-class university ban technology? Is this a joke?” it makes sense that candidates should disclose these substantial conflicts of interest during ANUSA elections. The ANU Executive explained that pencils and paper Disclosure will improve trust between ANUSA and the will be the only acceptable way to complete assess- student community, ensure that students are able to ments and participate in class. Wattle will also be offi- make informed decisions, and provide open and comaccess to positions to enable candidates to run cially disbanded, following reports from Woroni in June petitive 2023 that around 95% of undergrad students are actu- without the resources of a local party or activist club. ally just ChatGPT and are not sentient human beings. We also investigated the other ANUSA election tickets and found that: “Generative AI is an unacceptable risk to society”, ANU Ex- “Yes, Today” is the ANU Liberal Club ecutive Dean Brapburry explained. “Life was so much better “We Want You” is the ANU Labor Left Club before the internet and I, as well as the other ANU Executives, “Free Smoothies On Fridays” is the ANU Communist Club want to create a post-technology education for our students.” “U(s)A” is the ANU Republic Club “The Crown Season 3” is the ANU Monarchy Club We examined the conflict of interest disclosures of all ANU Exec- “Free Parking @ ANU” is the ANU Libertarian Club utive – including Dean Brapburry – and found that 75% of them “Grow 4 You” is the combined ticket of the ANU Legalise Weed and the ANU Capitalist Club belong to Luddites Australia, a political group resistant to new Club is the ANU Democratic Club technologies and advocate for a future free from technology. “Unite-E” “Free 4 All” is the ANU Anarchist Club To facilitate the transition away from useful technologies like laptops, the ANU Executive have announced a student pencil subsidy for all students. This will entitle all active students to seven HB pencils, and does not include paper or notebooks.
ANU student media orgs sign landmark agreement for one Schmidtpost per week On 14 September 2023, the bosses of the major ANU student media organisations have put aside their differences and signed a landmark agreement for each organisation to only post one article to Schmidtposting per week. This was met with overwhelming support from ANU students. “It’s the dawn of a new era”, said ANU political science student Rach Glenn. “We can safely say that Schmidtposting is no longer a battleground for the major ANU student media players and students can live freely on the forum without the fear of an impending showdown.” The ANU student media landscape has changed dramatically over the past few years. Woroni was once the oldest, richest and most powerful of the ANU student media titans, raking in hundreds of thousands of dollars each year in student services and amenities fees (SSAF) funding. For half a century, Woroni took advantage of this empire with no genuine competition, influencing ANU student opinion and politics however they wanted. ANU Observer then joined the fray a few years ago and is still a relatively new challenger for power in the ANU student media landscape. The riches have slowly been pouring in for ANU Observer, with SSAF funding slowly coming their way. The hegemony of Woroni is now being challenged, and the battlegrounds have been clear for years. One major battleground is Schmidtposting, arguably the most popular Facebook forum for ANU students, including posts about lost property, upcoming events, memes, socialist propaganda, and anything else you can think of. Woroni and ANU Observer have been battling it out in Schmidtposting for years, with economic and geostrategic importance in gaining more annual views and therefore a pitch to the uni for more funding. Students often prefer one or the other, with student interactions seen in the ANU media landscape as a zero-sum game. “I like Woroni better because I like student podcasts and videos and radio,” law student Alexis Branch said. Her friend leant over and chimed in, “nah Woroni is old, ANU Observer is so much better.” This landmark agreement – the ANU Student Media Organisation Convention (ASMOC) 2023 – reflects a warming of cold relations between the two ANU student media organisations, also reflecting ANU Observer’s assertion of dominance over the past few years and Woroni’s fear over losing its grip on power. Both organisations have set aside their differences by keeping the supply of articles to Schmidtposting artificially low, selecting their best article of the week rather than all articles to post. Although ASMOC represents a landmark warming in relations between the two organisations, other live battlegrounds remain unaddressed. There were border skirmishes between the two organisations in Kambri in March this year, which Pepperoni Observational News Corp reported on. The landmark agreement has also not dealt with the fractured relations between the two in ANU Confessions, and each organisation seeking a monopoly over reporting on ANUSA elections. “ANU Observer sent through a series of reservations and objections after Woroni first invited them to sign this agreement,” ANU student media expert Tan Hughson explains. “Woroni was able to firmly reject these and achieved an extraordinary outcome to keep ANU Observer from claiming any more of Woroni’s lost territory.” We asked several students for their opinions and the common theme was that much-needed balance in the ANU student media landscape has been achieved through this agreement. “I enjoy both of them but never enjoyed the oversaturation on Schmidtposting,” economics student Kyle Duplas said. “If I wanted to enjoy all of their content rather than just the best of it, I would just like and follow their Facebook pages. I want to see more shit-posting rather than quick-posting.” Although the battlegrounds on Schmidtposting have become more peaceful for now, the battle for hegemonic status between Woroni and ANU Observer over the ANU student media landscape rages on, and the funding and power that comes along with it.
Skim Reading
Sketchy Verdict by Luke McNamara
Sketchy Verdict is Peppercorn’s cartoon series
Issue spotting in Statutesville
The Scales of Justice
Invitation to Treat
cted by rer : Dire e d e D v RTA pielberg Steven S
Statuto ry inter pretatio n
Meeting of the Minds
Peppercorn Pedestal By Callum Florance
Art by Anna Liu
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Chilli Pepper 2 By Chilli Pepper
Chilli Pepper is Peppercorn’s resident solutions expert, providing spicy solutions to student problems.
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I tried to ask a question about lectures on a Wattle Discussion Board for one of my courses and the convenor embarrassed me in front of everyone and didn’t even answer my question. How do I come back from such a big hit to my reputation? (Convened)
Dearest Convened Let me express my deepest sympathies – but I must ask, did you check the Course Summary first? Even so, there’s nothing more embarrassing than being ghosted on the discussion board only for the Wattle digest email to re-emphasise the terrible sense of abandonment. I suggest you go out, buy some different disguises: think toupé, hungover-celebrity-big-sunglasses and a hoodie to pull up over your head (which I assume will be hanging in shame). Before you know it, someone else will come along and ask if footnotes are included in the wordcount (it was in the Course Summary) and your ghosting will be long forgotten! Forever your most Antagonist Aunt (who already checked the Course Summary), Chilli Pepper Xx
I’m starting a clerkship this summer and I have no idea what to wear! How do I make my Pretty Little Thing Mooseheads party dress office appropriate! (Firmidable Fashuns)
Dearest Firmidable Let’s start off by congratulating you on your clerkship! I wish you all the best battling it out with the other eager clerks. Unfortunately, most office dress codes don’t allow for exposed midriffs, funky cut-outs and miniskirts. But fortunately for you – you now have the perfect excuse to go shopping! Why not do it with a bit of fun and flair? Hit up the Green Shed and Goodbyes to find some funky second-hand workwear (bonus points for not supporting fast fashion!) Or if you feel like treating yourself, go on and buy that chic Cue blazer, I think it should hide the cut-outs in your bodycon PLT dress! (That is, Pretty Little Thing not Practical Legal Training…) As always your Agonising Aunt, Chilli Pepper Xx
I love Westlaw but my boyfriend swears by LexisNexis – we can’t stop fighting about it. Please help us settle this dispute before we break up forever, I’m worried he’s going to leave me for Jade. (Case-by-Case Basis)
Dear Case-By-Case Basis Life surely isn’t this black and white? Like the ANU Law Librarians taught us, we should be using a range of sources! Let your boyfriend teach you the inner workings of the LexisNexis Advanced Search and show him the magic of WestLaw’s extensive range of international sources. Soon enough, you will see that these databases aren’t oil and water – they are meant to meld together like a tasty bowl of olive oil and balsamic vinegar. Trust me, it’s a winning combination! Forever your Analogous Aunt, Chilli Pepper Xx
ANU recently bought a block of land and I will probably be renting for the rest of my life. How can I get famous and rich on TikTok? (ChocaBlock)
Dearest ChocaBlock I’ve got two words for you, baby: second-hand embarrassment. It seems all the TikToks that go viral these days are the ones which send our cringe metres into overdrive. So why fight it? I say go ahead and embrace cringe. Post a really bad karaoke video. A dance video where you fall over. Mispronounce schadenfreude (that’ll get ‘em riled up!). I guarantee you will be a star in no time and you can watch that TikTok cash flow in! Best wishes from your Aunt in Agony, Chilli Pepper Xx
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Graphics by Anna Liu
POLITICS AND OPINION
Art by Anna Liu
Inside Scoop On Climate Change Policy – Featuring Frank Mills By Adhina Jose In the year 2023, Australia as a nation is unfortunately nowhere near the targets that we have seemingly promulgated in the Paris Agreement (2016). This begs the question; are we doing enough? I had the privilege of discussing this with Frank Mills – the ANU convenor of ENVS3020 ‘Climate Change and Policy’ – to provide an insight into the relevance and complexities of law in climate change policy. The ambitious targets set in the Paris Agreement require extensive policy structures and governmental cooperation. The reluctance of nation states to change their behaviour due to their own economic interests, boundaries or geopolitical concerns has caused this delay in policy implementation and, more so, cooperation. Nations hold themselves to the standards set by other nations, and developing countries do not believe they should implement policy to mitigate climate change at the expense of the development of their economy. This culminates in slow progress towards these targets. Frank Mills cultivates an image regarding climate change and the development of policy on an international level as an essential activity that is hindered by many other challenges. Through his expertise and time dedicated to environmental studies and teaching university students, he has understood the nuances that arise when determining climate change policy. When asked about the trajectory of climate change policy on a domestic level, Frank Mills states that: ‘Australia’s international climate change policy is going to be guided by what happens with Australia’s domestic climate change policy. Australia is not going to make more ambitious international climate change commitments than the federal government is confident can be delivered. Domestically, Australia has federal and state/territory governments that acknowledge climate is changing and that Australia’s economy needs to change. This is consistent with the opinions of a large majority of Australians. However, Australia’s economy is not diversified and climate change is only one of many items on government agendas. Alternatives to extracting coal, oil, and gas that have comparable employment, national wealth generation, and tax revenue prospects need to be (quickly) developed so those existing mining activities can be (quickly) phased out. Other industries and transport need to be (quickly) de-carbonised. Housing needs to be (quickly) electrified as part of the de-carbonisation effort. Locally relevant and supported adaptation consistent with projected climatic changes will be needed. This transition needs to be actively guided/ managed consistent with other constraints and objectives, such as water availability and adequate agricultural productivity.’ Climate policy has endured as a challenging, highly politicised issue with an enduring struggle between governmental agendas and intergenerational equity. As global warming is a continuing issue, intergenerational and intragenerational equity remain
important topics. Both are acknowledged but not adequately considered due to competing agendas and interests. Intergenerational equity consists of equal distribution of fairness and access across generations, whereas intragenerational equity considers these notions in the generation across communities and states. This becomes an issue when climate action is understood differently in terms of people who are after intragenerational equity compared to the ideal goal of intergenerational equity. Frank Mills commented on the importance of intergenerational and intragenerational equity, explaining that: Its ‘[im]possible to separate intragenerational and intergenerational equity. Actions that affect equity within current generations will affect equity within and between subsequent generations. I also think it’s a false dichotomy to assume there has to be a trade-off between action on climate change and action on other societal goals. There are many areas in which progress on other societal goals, e.g., housing and health, is consistent with, supports, and is supported by action on climate change. Overall national wellbeing and economic livelihood are also compatible with action on climate change.’ This shows that societal misconceptions of climate action and the prioritisation of different goals leads to many policy-making challenges. In terms of the competing challenges that restrict climate change policy and the lack of a cohesive approach, Frank Mills states that: ‘A major issue limiting climate change policy across multiple countries has been and is a lack of consensus on, first, the need for action on climate change and, second, the appropriate responses. This lack of consensus continues to be exacerbated in some countries by the association of climate change action (or non-action) with partisan identities. Another major issue is the complex linkage of global climate change action with international geopolitics, competing national visions, and inability to achieve domestic consensus. Underlying all of these issues is the simple fact that carbon-producing activity is a primary basis for modern society and changing such a fundamental aspect of society is difficult.’ Overall, in terms of our domestic approach to climate change policy, Australia is quite advanced in terms of acknowledging the need for action. This can be seen through the establishment of the Commonwealth Department of Climate Change, Energy, the Environment and Water in 2022, to further develop a cohesive approach to climate change in Australia. Although Australia’s pace in recognising and developing a clear approach to climate change is clear, it is these economic, political and social barriers and framing of the action required that are hindering the consensus necessary for achieving our climate targets. The science is established, but without action the targets are meaningless.
Graphics by Callum Florance
Pepper Grinder – Braddon’s Rainbow Roundabout defaced with tyre marks By Callum Florance
Pepper Grinder is a Peppercorn series providing news and reporting relevant to ANU law students via Peppercorn’s Facebook Page and biannual Magazine.
On 22 November 2017, the ACT Government along with LGBTIQ+ allies and volunteers painted the roundabout in the heart of Braddon [1], affectionately called the ‘Rainbow Roundabout’. This was intended to meet the ACT Government’s objectives of social inclusion and urban renewal [2]. The Rainbow Roundabout was also ‘a colourful tribute to the same-sex marriage postal survey and the ACT’s thumping “Yes” vote’ [3] . ACT Chief Minister Andrew Barr has even called it ‘a cherished landmark’ in the past [4]. So what happens when a symbol of inclusion and renewal is defaced? Should it be up to the ACT Government to actively maintain the roundabout? Or is a call for volunteers needed? For this edition of Pepper Grinder, we report on the defacement of Braddon’s Rainbow Roundabout. Defacement For months now, Braddon’s Rainbow Roundabout has been defaced with tyre marks. I have previously seen repair vans park up onto the roundabout to fix its rainbow light pole, which a spokesperson from the City Renewal Authority noted ‘was installed as part of the 2018 Enlighten Festival’. It also looks like there are plenty of bike tyre marks
. Maintenance It is not clear whether the Rainbow Roundabout gets any regular maintenance or cleaning, as the paint has faded considerably. A spokesperson from the City Renewal Authority explained that the Rainbow Roundabout ‘is maintained as needed’. Volunteers and Allies Volunteers and allies were a core part of the creation of the Rainbow Roundabout in 2017. Surely the ACT Government could create or support a volunteer committee to help maintain the roundabout, or at the very least give it a clean when it gets defaced. There is something quite wrong about defacing a landmark, especially something that has a special meaning for a particular group in your society like the Rainbow Roundabout has for the LGBTIQ+ community. A Canberra Landmark? Braddon’s Rainbow Roundabout was named international roundabout of the year in 2020 [5]. It was a point of pride for the Yes!Fest in 2018 [6], which was a big block-party celebration on Lonsdale Street to mark the one-year anniversary of the successful “Yes” campaign and to recreate the spontaneous celebrations that happened on the winning night [7]. (Side note – bring back Yes!Fest). In response to this, we put it to the ACT Government whether it will recognise the Rainbow Roundabout’s special status as a Canberra landmark. A spokesperson from the City Renewal Authority stated that ‘The ACT Government recognises that Braddon’s Rainbow Roundabout is a place loved by many people’ and that there are currently ‘plans underway to refresh the roundabout so it endures as a symbol of Canberra’s commitment to inclusion and diversity’. We wholeheartedly agree with the sentiment of the ACT Government. A good first step would be to clean up the tyre marks. Footnotes [1] https://www.act.gov.au/cityrenewal/whats-on/past-events/rainbow-makeover-to-braddon-roundabout [2] Ibid [3] https://the-riotact.com/braddons-rainbow-roundabout-a-symbol-of-citys-diversity/224358 [4] https://www.abc.net.au/news/2019-01-23/canberra-rainbow-roundabout-could-be-a-casualty-of-redevelopment/10742840 [5] https://www.reddit.com/r/canberra/comments/10725k6/the.ultimate. canberra.culture.war.escooters/ [6] https://www.canberratimes.com.au/story/6869884/braddons-rainbow-junction-named-international-roundabout-of-the-year/ [7] https://www.canberratimes.com.au/story/6002647/love-wins-allover-again-yesfest-is-coming-to-lonsdale-street/ [8] Ibid
the ur family about yo to lk ta ld u o Why you sh e to Parliament Indigenous Voic sha Collins By Ai
When we talk about progressing society towards being more equitable and inclusive, it’s easy to pinpoint bigotry and hatred as an obvious roadblock. However, when left unaddressed, the silence of indifference and stagnation can be an even bigger hinderance. With recent estimates showing support for the ‘Yes’ campaign for an Indigenous Voice to Parliament dropping, public apathy is a major concern [1].
like mere virtue signalling, but also doesn’t attempt to speak for or over First Peoples? Perhaps the solution doesn’t have to be as big and scary as we think it is. Perhaps it can start with a simple conversation. I do not believe that the reason my family never talked about politics when I was a kid was because it was a ‘taboo’ topic, to avoid arguments. I believe that the reason we never spoke about politics was because we were both relatively apathetic about and alienated from the world of politics. Apathetic In the way that only people who do not face daily and institutionally perpetuated discrimination because of their race, sexual orientation, religion, or gender expression can afford to be. Alienated and disengaged in the way that many rural, lower-middle class families are simply too many worlds away from the ‘Canberra Bubble’ to appreciate its relevance to us, too.
I did not grow up in a politically engaged household. I am not the classic case of a child who inherits their parents’ political views, because growing up I never spoke to adults about politics. Of course, I always had my own beliefs and values, but my understanding of Australia’s political systems only really commenced when I started university and began to delve deeper into my own personal politics. It was a joy to befriend like-minded people and finally have meaningful conversations about My mother and I, for example, have lived very different things that matter. But coming to university also gave lives. She grew up in a military family, with conservame front-row insight into how an echo chamber works. tive parents. She was the first in her family to pursue a Now, I talk about politics with my friends all the time. university education and lived in a small country town But I talk about politics with my friends because I feel for most of her adult life, raising two children as a single comfortable doing so, because the conversations are mum. We have lived a wealth of different experiences interesting and engaging and educational, with no which have informed our respective political beliefs, negative personal repercussions. I know I will not lose but it is from my mum that I inherited the core values friends when I talk about my politics, because I know of respect and empathy, as well as a strong sense they will mostly agree with me. Yet, just as speaking of justice. We do not have to share the same political about politics among the echo chamber safety-net of views to talk about the Voice, because it is these values my friends does not come at a personal cost, neither above all else which the Voice to parliament embodies. does it do anything to generate legitimate change. I know, constitutional change cannot be said to be How, then, can I meaningfully support and advocate entirely apolitical. However, the political party you for the ‘Yes’ campaign for an Indigenous Voice to Par- vote for in elections holds almost no relevance whatliament? This has been a big question, I think, for a lot soever when talking about the upcoming referendum. of us young people as we watch the referendum draw What is entirely relevant is whether you believe that closer. What is something I can do that doesn’t feel all peoples in Australia should be afforded the right
to weigh in on issues and policies that directly af- The Guardian’s annotated pamphlets, which include fect them. It’s that simple. Forget the fear mongering independent fact checking in a digestible attempt to rumours of scary veto powers and a divided Austra- resolve ambiguity and misinformation, are a great lia – the Voice to parliament is not a parliamentary place to start when talking about the referendum body [2]. It will not have the power to make or discard (find them here [6] for the No campaign, and here legislation, or to control government funding [3]. It [7] for the Yes campaign). The next time you have will be a committee of a conversation with locally elected Aboriginal someone you’re not and Torres Strait Islander sure how to broach the people who will advise topic of the Voice with, government on matters ask if they’ve read them. affecting Indigenous AusCompare what you think tralians [4]. The Voice to you know about the parliament is not comVoice to parliament and “Indigenous rights are promising democracy. hear each other out. not political. The conIt is a step towards improving it. A step towards These conversations are versations we have with making Australia more more difficult than the democratic, which is in ones we have with our our families about the all our interests, regardfriends over a drink in Voice to Parliament do less of who you vote for. a bar or prompted by a Betoota Advocate meme not need to be, either.” Indigenous rights are not sent to the group chat. political. The conversaThey are more time contions we have with our suming and can be more families about the Voice uncomfortable. But they to parliament do not need to be, either. The ‘No’ vote could, truly, make a big difference when it comes time campaign pamphlet cites the slogan: “If you don’t to vote, and Australia cannot afford to let this opportuknow, vote no”, twice [5]. This is why talking about the nity pass. I am not asking you to have a political debate Voice is so important – we cannot let confusion and with your family. Just have a chat. I promise at least a lack of understanding get in the way of progress. one of you will come away from it better informed. footnotes: [1] https://www.abc.net.au/listen/programs/pm/voice -to-parliament-referendum/102757358 [2] https://www.theguardian.com/australia-news/2023/aug/28/what-is-the-indigenous-voice-to-parliament-australia-what-does-it-mean-explained-referendum-campaign [3] https://www.anu.edu.au/about/strategic-planning/indigenous-voice-to-parliament [4] https://voice.gov.au [5] https://aec.gov.au/referendums/files/pamphlet/referendum-booklet.pdf [6] https://www.theguardian.com/australia-news/ng-interactive/2023/jul/20/the-vote-no-pamphlet-referendum-voice-to-parliament-voting-essay-aec-published-read-in-full-annotated-fact-checked [7] https://www.theguardian.com/australia-news/ng-interactive/2023/jul/20/the-vote-yes-pamphlet-referendum-voice-to-parliament-votingessay-aec-published-read-in-full-annotated-fact-checked
Pepper Grinder - All Hail the Vernon Circle Rabbits! By Callum Florance
Surrounded by concrete and speeding drivers, Vernon Circle is like a dangerous island at the tail-end of Northbourne Avenue. Anyone who has braved its shores – possibly even on a walk to Mooseheads – and wandered up City Hill and onto Vernon Circle knows a mystical secret about it: the whole place is covered in rabbits. For this edition of Pepper Grinder, we will be exploring the at critical stages of development, such as seeding venerable Vernon Circle rabbits in all their glory, including and seedling establishment’, which ‘severely affects their legal status, who is responsible for them, whether they regeneration and recruitment of vegetation commuare protected, how the light rail construction is impacting nities and can cause soil erosion [that]... may replace them, and how we should be iconifying these symbols of native species with noxious or unpalatable weed specommunity resilience in the face of adversity and danger. cies’. The spokesperson also noted the ACT Pest Animal Management Strategy 2012-2022 is a useful guide for ‘reducing the damage caused by pest animals’. Legal status Despite (or because of) their hardiness, the Vernon Circle rabbits are considered to be pests. A spokes- Responsibility person for the National Capital Authority (NCA) re- The ACT is an interjurisdictional gem, with a mixture of ferred to their presence on Vernon Circle as a ‘rabbit Territorial and Commonwealth responsibilities over the infestation and the associated problems that come lands. However, the responsibility over Vernon Circle is with the overabundance of European rabbits’. Simi- murky. An NCA spokesperson noted ‘[t]he area of land larly, an ACT Government spokesperson referred to in question is managed by the ACT Government, not the rabbits as ‘a key threatening process to threatened [NCA]’. An ACT Government spokesperson said ‘Vernon species conservation under the Environment Pro- Circle is managed by the [NCA]’. Certainly a strange thing tection and Biodiversity Conservation Act 1999 (Cth)’. to uncover that the Vernon Circle rabbits are in a form of responsibility purgatory, let alone Vernon Circle itself. The NCA spokesperson explained that ‘European Rabbits (Oryctolagus cuniculus) are an invasive intro- Protection? duced species which out competes many other Aus- There is something commendable about the resiltralian native mammals for food’ and that ‘European ience of the Vernon Circle rabbits, but they are not rabbits cost, on average’ $216 million in damage to exactly being protected. ACT Wildlife noted in reAustralian agriculture each year (McLeod 2016), not sponse to questions that it ‘focus[es] on the Rescue, including damages to urban and peri-urban areas’. Rehabilitation and Release of Australian native which live in the ACT’ and its ‘vision is to ensure the welfare The ACT Government spokesperson added that ‘[r] and biodiversity of wildlife in the ACT is maintained’. abbits selectively feed on certain species of plants It is therefore no surprise that ACT Wildlife says it ‘has not had any engagements with the rabbits’.
Photo by Max Sandler
Pepper Grinder is a Peppercorn series providing news and reporting relevant to ANU law students via Peppercorn’s Facebook Page and biannual Magazine.
An NCA spokesperson said that, ‘[w]here appropriate, the NCA undertakes pest control activities... using a variety of measures’ because ‘European rabbits are prolific breeders and until another effective biocontrol agent is released, or environmental conditions change, populations will remain high wherever food is plentiful’. Needless to say, the NCA and ACT Wildlife are not protecting the Vernon Circle rabbits. Light rail construction Although the Vernon Circle rabbits are regarded as pests and are not protected, the light rail construction on Vernon Circle poses questions about their treatment. I asked ACT Wildlife whether it has a position on the protection of the Vernon Circle rabbits with the ongoing construction around their habitat. ACT Wildlife responded that it ‘believes that no animal should be allowed to suffer or be abused’ and ‘[a]ll animals should be treated with respect and kindness and whatever the governing laws stipulate’.
Iconify Yes, there are legitimate environmental issues with rabbits around Canberra, but the Vernon Circle rabbits are distinct and should be iconified rather than eradicated. The Vernon Circle rabbits are the embodiment of community resilience in the face of diversity and danger. They should be venerated and iconified, they should have a legacy. There should be statues of them placed on Vernon Circle. There should be a poem called All hail the Vernon Circle rabbits! to accompany those statues. Regardless of whether they are successfully removed in the future, or whether they exist for eternity, the Vernon Circle rabbits should live on in perpetuity.
All hail the Vernon Circle rabbits! On an island in Canberra A peculiar sight you’ll see – The Vernon Circle rabbits, An ACT Government spokesperson explained how rab- In abundance and solidarity. bits were being treated in the light rail construction process around Vernon Circle:
Despite cars and light rail, And danger and adversity, • For the work on Vernon Circle, the light rail project en- The Vernon Circle Rabbits vironment team referred to the Best Practice Manage- Will live on endlessly. ment Guide for Rabbits in the ACT to investigate options for management. This guide is solely focused on measures to control and reduce population numbers, however, measures have been put in place to avoid causing unnecessary harm in to rabbits during the works.
• Most of the rabbit populations within the Vernon Circle work area are located on City Hill, where no construction works or associated destruction to any warrens will occur. The ‘tree knock’ or nudge approach is use before works, which involves creating a noise/vibration disturbance to alert the animals in a non-destructive manner, with the goal being for the animals to leave the area/s. In the case of work on Vernon Circle, the rabbits would, and have to date, moved into City Hill. • The staged approach of the work has also meant a gradual increase in construction activity and noise, which has reduced the sudden impact to the rabbit populations through noise and vibration in the City Hill vicinity. • The ACT Government ensures workers are aware of their surrounds and environmental issues, including of rabbits.
All hail the Vernon Circle rabbits! A community foregone, Unwanted by the world. These icons will live on. All hail the Vernon Circle rabbits! These icons will live on. These icons will live on.
Law students can be creative too – Reflections from a Magazine Director By Aisha Collins I love studying law almost as much as I love complaining about studying law. Motivation ebbs and flows, but I (finally) figured out about halfway through my second year of Uni that motivation can be nurtured if given the right stimulus. The times throughout my law degree where I’ve felt the most uninspired have been in the absence of a creative outlet, or when I have felt disconnected with how the law I am studying practically applies in the world and impacts people on a day to day basis. So, when I saw the position of Magazine Director advertised in one of my course group chats in the middle of my bi-semesterly study slump, I decided to apply, thinking the position might re-ignite my passion for the world of law and the goodness and change it can bring. A celebration of creativity and collaboration and diversity of thinking within the law? Passion-filled words and art by young student contributors exploring socio-legal problems in our society? Let’s get stoked! Beginning A year and a half on, I’ve been reflecting upon why linking law and creativity is so important to me. Before commencing my law studies I had little knowledge of what it’d be like to study law, but the preconception the study of
law as rigid and laborious and potentially dry was enough to convince me I should pair my LLB with an Arts degree, as a way to ensure I’d “actually enjoy” at least some of my courses. It doesn’t sound like a great pretence upon which to start my tertiary education, but I am pleased to report that I’ve found myself pleasantly surprised. To me, the study of law absolutely rewards creativity, especially when considered in hypothetical problem-solving contexts. When I started talking to my friends about the idea I had to write an article about the nexus of creativity and the law, however, I found that my position was not as widely shared as I’d previously thought. A bit of research and crowd sourcing of opinions confirmed this. Profession “If there’s one profession that stifles creativity, it’s the legal profession”, practitioner Jeff Bennion is quoted by Alexander Carter in a 2020 paper exploring creativity in the law[1]. This same paper goes on to cite a recent survey of legal professionals in Australia, which concluded that creativity is often undervalued in Australian law firms[2]. Another 2017 study surveying employer’s perception of the most valuable traits for legal professionals affirmed this position[3]. In comparison with other skills such as prudence, rigour, and competency creativity hardly charts. “We are taught not to be creative”, Bennion continues. “Try writing a legal memo not using [H]IRAC … It won’t end well”. HIRAC This certainly rings true, to an extent, in an examination context. We all know that getting a good mark hinges on clear and concise application of the law within the HIRAC structure, and the more obvious adherence to this structure is, the more likely you are to get a good grade.
Graphics by Anna Liu
But I don’t think we should be viewing this strict adherence to a logical framework as a creative hinderance. While I was never very good at mathematics, and concluded at a young age that numbers were simply “not my thing”, something in my brain just really digged the satisfaction I gained from working through a formula step by step and reaching a conclusion. To me, legal problem solving in law school encompasses everything I loved about my math classes in school, while at the same time compensating for what I didn’t excel at. You have a legal problem, and you have a formula you need to use in order to solve it: HIRAC. However, instead of numbers, you use words, and where strict application of the rules doesn’t lead you to the answer you desire, when you can’t crack the formula, you can fall back on creativity. Perhaps, then, it’s a matter of perspective. I don’t believe that logical argument grounded in precedent and adhering to legal frameworks needs to preclude creative thinking. Society Not only, in my opinion, do our studies reward creative application of the law, but I think our society needs it. In fact, I think creativity is the very driving force behind legal innovation, but too often goes uncredited. How case law precedent is applied in our current day and age needs to adapt as our society does. Our interpretation of the constitution, and other legislative provisions, also need to adapt as new circumstances require them to be construed in different contexts. We need law degree graduates who are able to think differently from within the box, if we consider that box to be legal framework. Of course this still entails those legal procedures be followed, but in an enabling sense, not a restricting one. As Alexander Carter suggests, we should perceive legal frameworks as tools to be used as opposed to restrictions to adhere to [4].
Study One thing that’s clear to me is that if we want to encourage legal creativity and innovation, then the way we approach our law degrees is definitely the place to start. With more and more courses following the structure of the 40% and 60% two-assessment split, I applaud the course convenors mixing it up with op-ed assignments and in-class student-led presentations, incorporating different approaches to learning about the law and encouraging students to take creative approaches to their studies. Perhaps the more value we place on creative problem solving and exploring different ways of learning from and about the law, the more engaged and passionate our student body might become. Your law student mag Looking for creative inspiration? Have a flick through a Peppercorn Magazine the next time you’re in the law library. See what aspects of the world of law your peers are passionate enough about to write and draw about and create things from. Better yet, shoot us an email and get involved. I promise, we’re loads of fun!
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[1] Alexander Carter, “Creativity in the Law”, The Impact Lawyers (June 2020). [2] ALPMA/InfoTrack Survey Report 2017, “21st Century Thinking at Australian Law Firms”, (2017). [3] LegalEdhec Research Centre, “How do managers perceive the law and legal practicioners,” Business & Legal Forum (October 2010). [4]. Alexander Carter, “Creativity in the Law”, The Impact Lawyers (June 2020).
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ACADEMIC
Art by Anna Liu
United States and Aust ralian P ractice in the Inter national Nuclear Non-P roliferation Regime By Joseph Oh I. Introduction The dual-use nature of nuclear energy as weapons of mass destruction[1] and an efficient energy source for civil use positions the international nuclear non-proliferation (‘INNP’) regime in a contentious state. Superpowers, such as the United States (‘US’) as a nuclear-weapon state (‘NWS’), are authoritative major parties to the contractual Treaty on the Non-Proliferation of Nuclear Weapons (‘NPT’),[2] while middle-power, non-nuclear-weapon states (‘NNWS’) such as Australia rely greatly on the alliance with the US and the legality of such agreements to support their nuclear security and civil use of nuclear energy. The NPT establishes, through a quid pro quo agreement between state parties, three principled pillars for the INNP regime: non-proliferation, disarmament, and peaceful use of nuclear energy[3]. Due to the ‘reciprocal structure’ of the pillars of the NPT,[4] strict compliance to the NPT by every state party is imperative. There are, however, instances of the US and Australian practice that have at times bolstered or challenged the INNP regime. II. United States’ Practice and Stance to the International Nuclear Non-Proliferation Regime The US, as an NWS, is a significant power in the INNP regime, being the only nation to have used nuclear weapons during wartime.[5] The US was an original signatory of the NPT in 1968, following ratification in 1970.[6] The US has kept a relatively consistent stance in endorsing the principled pillars of the NPT, despite their prioritisation of the non-proliferation pillar.[7] The US practice in bolstering the INNP regime is evident from the beginning of the Strategic Arms Limitation Talks (‘SALT’), between the US and the Soviet Union (‘USSR’) - the two states possessing the greatest number of nuclear weapons. During the time of the SALT negotiations, however, it is criticized that the US stance in promoting the NPT was politically and militarily due to its competition with the USSR. This could be viewed as a regression in the efforts to uphold Article VI disarmament obligations under the NPT, where parties should
“pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race... and complete disarmament under strict and effective international control.”[8] Despite the US practice in the Cold War having undermined the credibility of the US in the INNP, negotiations by the US and the USSR for nuclear non-proliferation made after the SALT can be viewed as the US’ efforts to uphold obligations of the NPT. The Strategic Arms Reduction Treaties aimed to reduce and limited strategic offensive arms,[9] and for the banning of the multiple independently targetable re-entry vehicles (‘MIRV’) on ICBMs.[10] It is criticised that the agreements the US had entered with the USSR, however, despite being the only goals set by the US on nuclear disarmament, were in reality arms control methods which were proceedings to “show compliance with the disarmament requirements... to maintain the balance between superpowers.”[11] Joyner emphasises that all three principled pillars of the NPT should be presumed to be juridically equal. [12] In their uneven prioritisation of the non-proliferation pillar of the NPT the US marginalises the pillars of the peaceful use of nuclear energy and disarmament.[13] It has been noted by numerous states that the US’ arms race has continued in the improvement in the quality of “existing nuclear weapons and their delivery system,” indicating that the US “maintained a mirage that the three pillars were in balance.”[14] III. Australia’s Practice and Stance to International Nuclear Non-proliferation Regime Australia is on the forefront of promoting the equal balance of the three principled pillars of the NPT as a NNWS. Australia signed the NPT in 1970 and ratified in 1973 and ensured that the NPT was extended indefinitely in 1995.[15] Australia does not possess any history of utilising nuclear weapons and holds a strong global presence in promoting the peaceful use of nuclear energy due to their uranium exports.[16]
The effort of Australia to bolster the promotion of the INNP regime to construct and rely on a legal structure for nuclear safety is mainly evident in their actions relating to the establishment of international frameworks and treaties. An example includes the establishment of the South Pacific Nuclear Free Zone Treaty (‘SPNFZ’) prohibiting “manufacturing, acquiring, or receiving assistance in the manufacture or acquisition of nuclear explosive devices”.[17] Although not being an entirely robust regime, this framework initiative focuses on the practical methods to promote the NPT disarmament pillar and strengthen the NPT. Alongside being a key power in the INNP regime establishing treaties and frameworks for non-proliferation, Australia relies greatly on the civil use of nuclear energy, having approximately one third of the world’s uranium resources and consisting of 10 per cent of annual global production.[18] This creates contention in the balance of Australia’s trade interests, and the indirect effect it has on perpetuating the US nuclear regime as they consist of, for both direct and processed exports, over half of the final demand for Australian uranium exports.[19] Australia however maintains the peaceful use of nuclear energy pillar of the NPT by strictly adhering to the Australian Obligated Nuclear Material (‘AONM’) in the bilateral agreements with import states, which give treaty-level assurances that the AONM is prohibited from being utilised for military or explosive purposes.[20] Australia’s compliance to these obligations makes the US, Australia’s biggest uranium importer to comply to the NPT, as seen in the US Nuclear Regulatory Commission (‘USNRC’) restriction in the use of AONMs for military purposes.[21] IV. Comparative Analysis of United States and Australian Perspectives to the International Nuclear Non-proliferation Regime While both the US and Australia have supported the INNP regime and agreed to the indefinite extension of the NPT, [22] there are clear differences in their practice as NWS and NWWS to the INNP regime. Despite this, there are similarities evident in both states’ practice in endeavoring to achieve their national and mutual interests in their positions to the substantive global movement for the banning of nuclear weapons. The Treaty on the Prohibition of Nuclear Weapons (‘TPNW’)
initiated in 2017, is considered to be a ‘landmark global agreement’ containing the most significant limitations on nuclear weapons, [23] with signatories prohibited to “develop, test, produce, manufacture, otherwise acquire, possess or stockpile nuclear weapons or other nuclear explosive devices”[24]. The US and Australia are both not a party in negotiation. [25] It is speculated that the accession to the TPNW would render Australia’s actions reliance on the US’ extended nuclear deterrence, which “allows for the US to use, or threaten to use, nuclear weapons in defence of Australia,” [26] construed in the Australia, New Zealand and United States Security Treaty (‘ANZUS’) [27]. Although not specifically stipulated under Article II, Australia’s reliance US’ extended nuclear deterrence is established in the ANZUS. [28] The meaning of “effective self-help and mutual aid” to resist armed attacks, [29] has evolved through ‘subsequent agreements’ [30] for the interpretation of nuclear deterrence to be accepted as a part of the ANZUS bargain. [31] An interpretation can be accepted to transform the treaty obligations with the repeated statements about a state’s understanding of a treaty provision, and the acceptance or acquiescence of the other party. [32] The combination of the Department of Defense’s Strategic Policies and public White papers, Australia’s consultations with the US during its drafting process, and the US having never rejected these policies, presumes that the US has acquiesced Australia’s position on relying on their extended nuclear deterrence. [33] The US would have to cease the “continuance of nuclear weapons possession and stockpiling” [34] under Article 1(1)(a) of the TPNW if it were to accede the treaty. Although there is a difference in each states’ breach in that Australia does not possess any nuclear weapons or is directly involved in the activities proscribed under Article 1(1)(a), Australia could be in breach of Article 1(1)(e) prohibiting the actions to “assist, encourage or induce, in any way, anyone to engage in any activity prohibited.” [35] Furthermore, the recent developments in the US and Australian relationships through the trilateral AUKUS pact for “a shared ambition to support Australia in acquiring nuclear-powered submarines for the Royal Australian Navy,” [36] reveal both states’ aims for mutual
R E F E R E N C E S security benefit. The fuel for nuclear propelled submarines is considered weapons-grade uranium, [37] and IAEA safeguards require the organisation to monitor and verify types and amount of any nuclear material on a NNWS’ territory. [38] While it is nearly impossible for Australia to allow the IAEA to safeguard the high-enriched uranium, as it is difficult to be monitored when invariably out in the sea, the significant limitation also lies in the unfavourable scrutiny of an international organisation to classified military information. Thus, through AUKUS, a clear inconsistency with the US practice arises from their previous transitive ‘blurring’ or ‘conflation’ of the noncompliance with the IAEA safeguards with an NPT breach. Therefore, it is clear that the US is strategically “empowering its allies, redistributing its forces around the Indo-Pacific,” [39] despite possibly unravelling the NPT through its inconsistent applications and interpretations. Although Australia relies greatly on the legality of the NPT, its collective action with the US reveals that the ‘technological acquisitions’ and the sharing of information and the strengthening of their naval artillery [40] to an extent, overrides such reliance. V. Conclusion The enquiry into the practice and stance towards the INNP regime by US and Australia, and a comparative analysis, revealed their actions motivated by national and mutual interest, which at times have bolstered and challenged the INNP regime. The US as a leading superpower has great leverage in avenues of the INNP regime, while Australia as a subordinate state relies on the relationships with the US and the legality of instruments such as the NPT and international frameworks. Despite the differences, the alliance between Australia and the US in their state practice preventing their accession of the TPNW reveals similarities in their practice and stance towards the INNP regime, and support of each states’ nuclear security.
[1] Ved P. Nanda, ‘Nuclear Weapons, Human Security, and International Law’ (2009) 37 Denver Journal of International Law and Policy 331, 332-3. [2] Dan Joyner, Interpreting the nuclear Non-Proliferation Treaty (Oxford University Press, 2011) 28. [3] Ibid 28-9. [4] Ibid. [5] Mohamed I Shaker, The Nuclear Non-proliferation Treaty: Origin and Implementation (Oceanea Publications, 1980) xxi. [6] Ibid. [7] Ved P. Nanda, ‘Nuclear Weapons, Human Security, and International Law’ (2009) 37 Denver Journal of International Law and Policy 331. [8] Treaty on the Non-Proliferation of Nuclear Weapons, opened for signature 1 July 1968, 729 UNTS 161 (entered into force 29 June 1982) (‘NPT’), art VI. [9] Treaty between the United States of America and the Union of Soviet Socialist Republics on Strategic Offensive Reductions (START I)’ The Nuclear Threat Initiative (Web Page) <https://www.nti.org/education-center/treaties-and-regimes/ treaties-between-united-states-america-and-union-soviet-socialist -republics-strategic-offensive-reductions-start-i-startii/#:~:text=The%20 U.S.%2DSoviet%20Strategic%20Arms,Soviet%2FRussian%20strategic%20nuclear%20weapons%20>. [10] ‘Treaty between the United States of America and the Union of Soviet Socialist Republics on Strategic Offensive Reductions (START II)’ The Nuclear Threat Initiative (Web Page) <https://www.nti.org/education-center/treaties-and-regimes/treaty-between-united-states-america-and-union-soviet-socialist-republics-strategic-offensive-reductions-start-ii/>. [11] Fanni Bunevacz, ‘The Nuclear Non-Proliferation Treaty-Obligations and Rights of States Parties: Balancing the Pillars of Non-Proliferation, Peaceful Use, and Disarmament’ (2017) 8 Journal of the Philosophy of International Law 56, 63-4 (‘Balancing the Pillars of Non-Proliferation, Peaceful Use, and Disarmament’). [12] Ibid 33-4. [13] Bunevacz, ‘Balancing the Pillars of Non-Proliferation, Peaceful Use, and Disarmament’ (n 22) 66. [14] Ibid. [15] ‘Treaty on the Non-Proliferation of Nuclear Weapons (NPT)’ Department of Foreign Affairs and Trade (Web Page) <https://www.dfat.gov.au/international-relations/security/non-proliferation-disarmament-arms-control/nuclear-issues/treaties> [16] ‘Australia’s Uranium Production and Exports’ Department of Foreign Affairs and Trade (Web Page) <https://www.dfat.gov.au/publications/corporate/asno-annual-report-2018-19/ site/section-2/australias-uranium-production-and-exports.html>. [17] Elizabeth L. Gibbs, ‘In Furtherance of a Nuclear-Free Zone Precedent: The South Pacific Nuclear Free Zone Treaty’ (1986) 4 Boston University International Law Journal 387. [18] ‘Australia’s Uranium Production and Exports’ Department of Foreign Affairs and Trade (Web Page) <https://www.dfat.gov.au/publications/corporate/asno-annual-report-2018-19/site/section-2/australias-uranium-production-and-exports.html>. [19] Ibid. [20] Ibid. [21]10 CFR § 40.56 (2020). [22] Helen M. Cousineau, ‘The Nuclear Non-Proliferation Treaty and Global Non-Proliferation Regime: A U.S. Policy Agenda’ (1994) 12 Boston University International Law Journal 407. [23] Anna Hood and Monique Cormier, ‘Can Australia Join the Nuclear Ban Treaty without Undermining ANZUS?’ (2020) 44 Melbourne University Law Review 132 (‘Can Australia Join the Nuclear Ban Treaty’). [24] Treaty on the Prohibition of Nuclear Weapons, Agenda Item 9, UN Doc A/ CONF.229/2017/8 (7 July 2017) art 1(a) (‘TPNW’). [25] Hood and Cormier, ‘Can Australia Join the Nuclear Ban Treaty’ (n 52) 132. [26] Anna Hood and Monique Cormier, ‘Australia’s Reliance on US Extended Nuclear Deterrence and International Law’ (2017) 13 Journal of International Law and International Relations 3, 4. [27] Hood and Cormier, ‘Can Australia Join the Nuclear Ban Treaty’ (n 52) 159. [28] Ibid, 142. [29] Security Treaty between Australia, New Zealand and the United States of America [ANZUS], opened for signature 1 September 1951, [1952] ATS 2 (entered into force 29 April 1952), art II (‘ANZUS’). [30] Hood and Cormier, ‘Can Australia Join the Nuclear Ban Treaty’ (n 52) 159. [31] Ibid. [32] Ibid. [33] Ibid 156. [34] TPNW (n 53) art 1(1)(a). [35] Ibid art 1(1)(e). [36] Agreement Between The Government Of Australia, The Government Of The United Kingdom Of Great Britain And Northern Ireland, And The Government Of The United States Of America For The Exchange Of Naval Nuclear Propulsion Information, opened for signature 22 November 2021, [2021] ATNIF 10 (not yet in force). [37] Anastasia Kapetas, ‘Limiting the Nuclear-Proliferation Blowback from the AUKUS Submarine Deal’ Australian Strategic Policy Institute (Web Page) <https://www.aspistrategist.org.au/limiting-the-nuclear-proliferation-blowback-from-the-aukus-submarine-deal/>. [38] The Structure and Content Of Agreements Between the Agency And States Required in Connection with the Treaty On The Non-Proliferation Of Nuclear Weapons, INFCIRC/153 (entered into force 1 June 1972). [39] Charles Edel,‘What drove the United States to AUKUS?’Australian Strategic Policy Institute (Web Page) <https://www.aspistrategist.org.au/what-drove-theunited-states-to-aukus/> [40] Ibid.
R v Phillips – An exegesis By David Ferrell
cw: Sexual Assault, Sexual Violence, Rape, Gaslighting, Trauma My graphic illustrates Chapter 6 of Bri Lee’s Eggshell Skull. This chapter reproduces the cross-examination of ‘Jessica’, a witness and complainant in the rape trial, R v Phillips. By contrasting the construction of form alternatively by line and by colour, I attempt to depict how victim-survivors, engaging in the autobiographical medium of testimony, are subjected to the prescriptive narratives of law and society in the forum of the courtroom. Lines and clear panelling are used when representing experiences and spaces mediated by sanctioned forms of story-telling. The formation of objects and scenes by clear lines signals rational spaces and acceptable narrative orderings. The first page illustrates the court as such an epistemologically structured space, composed of conventional, strictly geometric and symmetrical panelling, and clear linework. The ordering, isolating logic of law is represented by the visual partitioning of the figures by thevectors of the bannisters. ‘Nervous disposition’ (Lee 86) – the words used by the prosecutor to introduce Jessica’s testimony to the jury – are visually superimposed upon Jessica within the frame. This suggestion by the prosecutor forms the seed of the jury’s ‘narrative of Jessica’. From this seed, other labels are invited upon the female witness. These appear, disavowed from the positive space of the panel, in the negative space of the gutters; multiplying and surrounding the sanctioned narrative. Dominant colour and the omission of clear lines and panelling, by contrast, are used to reflect the confusion and chaos of unmediated experience; in particular, experiences of trauma, which fail to be processed by normal narrativizing and linguistics discourses and remain sensorially visceral. The second page, depicting Jessica recounting her memory of the traumatic incident, blends times, scenes and perspective in intense, flowing hues of dark colour. Raw sensory imagery is evoked by diegetic sound inserts: ‘FLUSH!’ and ‘SHOUT!’. Time is blurred and confused in the middle scene, depicting multiple interactions between the same two figures without clear temporal division or a linear flow of time across the panel. The unmediated sensorial and imaginative chaos of this traumatic memory flows into the forum of law in the third page. Reflecting law’s reliance upon heavily circumscribed and mediums of story-telling, however, Jessica’s questioning by the barrister violently re-encloses her within the narrative form of the panel, within the disciplining epistemologies of the courtroom, depriving her of her own phenomenological sense-making, confining her to the logic of her audience. The disavowed pejoratives return and surround her captivity. The final page depicts the witness in place of the criminal in Gustav Klimt’s ‘Jurisprudence’. Like the criminal figure, the witness is reduced to bare humanity before the pervasive domination of legal evaluation. The witness stands before the law, with hands unbound, seeking justice, but instead, subjected to the law’s hegemony over truth, becomes publicly the object of judgment. This frozen portrait is ultimately enclosed by the image of the courthouse, an entrapping network of geometric lines.
Comparative Analysis of Judicial Independence in Malaysia and the Hong Kong Special Administrative Region By Joseph Oh I. Introduction The Westminster and common law tradition of judicial independence is imperative in upholding the rule of law through impartial interpretation and application of the law, and keeping legislative and executive action in check [1]. This essay will argue that Malaysia and the Hong Kong Special Administrative Region (‘HKSAR’) have adopted and adapted the tradition of judicial independence in their postcolonial constitutions in similar and contrasting ways through the safeguards in place for the appointment and security of tenure of judges, and the delimitation of judicial power through constitutional interpretation. II. Judicial independence through judges’ appointment and security of tenure in Malaysia and the HKSAR Judicial independence is required for dispassionate adjudication by judges to uphold the rule of law, and such independence can be hindered if judges are solely “appointed, promoted and dismissed at the pressure of the executive government” without any safeguards against possible duress.[2] Thus, judicial independence is preserved through a more independent process in the appointment and security of tenure for judges of superior courts. In Malaysia, superior court judges are “appointed by the Yang di-Pertuan Agong (‘YDPA’), acting on the advice of the Prime Minister (‘PM’), after consulting the Conference of Rulers”. [3] Although the introduction of a Judicial Appointment Commission (‘JAC’) now provides non-binding recommendations to the PM, it is not a constitutional requirement, and the PM often rejects the recommendations. [4] Therefore, it is unclear how effective the process is in safeguarding the independence of appointing superior court judges and preventing nepotistic appointments. Superior court judges are conferred security of tenure under Article 125 and can only be dismissed through a representation by the PM or Chief Justice to the YDPA after consulting the PM, followed by recommendations of a tribunal appointed by the YDPA of at least five serving, retired, local, or Commonwealth judges. [5] Despite this safeguard, judicial independence has been challenged in Malaysia in the event of the dismissal of the Lord President Tun Salleh by the executive. The Tribunal regarding Tun Salleh’s case construed removal under Article 125(3) widely, in that his public speeches defending the Judiciary’s role, and criticising the insufficient funding given to the judiciary,[6] amounted to “misbehaviour” which resulted in “discredit and bias against the government”. [7] The removal of office of judges should be construed in a strict way to uphold judicial
independence “otherwise, judges can be removed at the slightest pretext with the greatest ease,”[8] which inhibits the delivery of justice impartial to influence from the executive or legislature. While the check placed on the judiciary by the executive to remove a judge not fit for office is in principle a Westminster tradition, Malaysia has adapted this tradition in blurring the “rules as to... the grounds for removal”[9] through the unwarranted removal of Tun Salleh. While the Tribunal’s ruling is not binding precedent for constitutional interpretation, the seemingly unfettered removal of the Lord President illustrates how the postcolonial constitution of Malaysia has adopted insufficient safeguards for the tenure of judges from unfettered governmental intervention to ensure judicial independence. In the HKSAR, under Article 88 of the Basic Law superior court judges are “appointed by the Chief Executive on the recommendation of an independent commission”.[10] Although the establishment of the Judicial Officers Recommendation Commission Ordinance (‘JORC’) raised concern with the inclusion of three lay members appointed by the Chief Executive enabling political appointments,[11] Article 92 of the Basic law stating “Judges... of the Hong Kong Special Administrative Region shall be chosen on the basis of their judicial and professional qualities” appears to prevent political and nepotistic appointments.[12] Under Article 89(1) of the Basic Law, the Chief Executive can remove a judge due to inability or misbehaviour “on the recommendation of a tribunal appointed by the Chief Justice of the Court of Final Appeal”.[13] This procedural requirement seems similar to Malaysia, but Article 90(2) of the Basic Law further requires the endorsement by the Legislative Council and report to the National People’s Congress Standing Committee (‘NPCSC’) for the removal of judges on the Court of Final Appeal (‘CFA’) or the Chief Judge of the High Court. This dual involvement of the executive and legislature in determining judges’ tenure contrasts with Malaysia, where the executive is solely vested with the power and exhibits a more robust procedural safeguard to the tenure of judges.[14] Furthermore, the phrase “may only be removed for” in Article 89(1),[15] imposes a strict limitation and high-bar on the scope regarding the fitness for office on the Chief Justice of the CFA, [16] which contrasts with how widely the Tribunal in Malaysia interpreted the ground of removal. The purpose of the word ‘only’ in the drafting history of the Basic Law was to ensure that judges will not be removed for circumstances other than those strictly stipulated under Article 89(1), [17] and this position was affirmed in Stock Exchange of Hong Kong. [18] Compared to Malaysia, the HKSAR has adopted and adapted more robust procedural safeguards in the appointment and security of tenure of superior court judges in their postcolonial constitution to restrict governmental interference with judicial independence.
III. Judicial power in Malaysia and the HKSAR The principle of judicial independence to uphold the rule of law by administering impartial adjudication and keeping legislative and executive actions in check is protected by the extent and exclusivity of judicial power vested in the judiciary.[19] Article 4(1) of the Malaysian Constitution regards the Constitution as the “supreme law”, [20] where any unconstitutional legislative or executive action is considered void. As held in Ah Thian, “the doctrine of supremacy of Parliament does not apply in Malaysia... The power of Parliament... is limited by the Constitution,” [21] meaning that “courts in Malaysia are not subordinate to a supreme parliament and are conferred with the ability to hold unconstitutional legislation invalid”.[22] However, the wide construction of judicial power in Dato Yap Peng holding that the Public Prosecutor’s discretionary power to be judicial in nature, [23] thus invalid in the determination of the process of how cases are to be heard,[24] subsequently led to the Malaysian Parliament’s amendment of Article 121(1) of the Federal Constitution. Article 121(1) now states that those courts “shall have such jurisdiction and powers as may be conferred by or under federal law,”[25] which seemingly positions the Malaysian judiciary in a subordinate position to the legislature to become “pure statutory creatures subject to the will of Parliament.”[26] Thus, such constitutional amendment “resulting in a system of de facto legislative supremacy,”[27] exhibits the attempt of Malaysian government adapting their postcolonial constitution to weaken judicial power and undermine judicial independence. Accordingly, judgments following the constitutional amendment interpreting the extent of judicial power conferred by the constitution illustrates the state of turmoil of judicial independence in Malaysia. The decision in Kok Wah Kuan[28] exacerbated the issues arising from the purported weakening of judicial independence in the Constitutional Amendment. The majority decision established that “[t]he [separation of powers] doctrine is not a provision of the Malaysian Constitution”,[29] and took a strict interpretation in that legislation “had to be inconsistent with a “specific provision” of the Constitution,”[30] and not just the doctrine alone. Since the provision vesting the judicial power of the Federation in the courts was removed from Article 121(1), and there was no specific provision in the constitution with which the provision in question in the case could be deemed to be inconsistent, the section was upheld.[31] It was held that after the amendment, “even if... that judicial power still vests in the courts, in law, the nature and extent of the power depends on what the Constitution provides”.[32] Nonetheless, the recent landmark case of Semenyih Jaya [33] seemingly restored the weakened judicial power in Malaysia. The Federal Court overturned Kok Wah Kuan and held that “judicial power of the court resides in the judiciary and no other”. [34] Thus, the strict construction of the constitution regarding judicial power in Kok Wah Kuan was a breach of the Article 4(1) of the Constitution that prevents the supremacy of the legislature. [35] The Court provided dicta that the legislature is unable to amend the Constitution to undermine judicial independence. [36]
The Court in Semenyih Jaya only struck down an unconstitutional provision of an Act, but did not clearly declare the amendment as unconstitutional, nor clearly delimit the scope and extent of judicial power.[37] This left the status of Article 121(1) unclear. [38] If the Federal Court in a future case diverges from the purposive interpretation of judicial power in Semenyih Jaya, and pursues a literalist interpretation as in Kok Wah Kuan, the efforts of professing the exclusive conferral judicial power and independence in the judiciary will be undone. In contrast to Malaysia, Article 2 and Article 85 of the HKSAR Basic Law expressly state provisions of judicial independence. [39] The location of Article 2, which is where the National People’s Congress (‘NPC’) authorises the HKSAR to “enjoy... independent judicial power, including that of final adjudication”, [40] is in the first chapter of the Basic Law which establishes the ‘Main Purpose’ and embodies the ‘One Country, Two Systems’ regarding the HKSAR.[41] This illustrates that in contrast to the approach held in Semenyih Jaya regarding the post-amendment Malaysian Constitution, the Basic Law embodies an explicit provision vesting exclusive judicial power in the judiciary. Article 85 also interestingly states that HKSAR courts must “exercise judicial power independently, free from any interference”, [42] which highlights the conferral of exclusive judicial power and freedom from interference by the “executives and legislatures”. [43] The exclusivity of judicial power conferred by Articles 2 and 85 establishes that judicial independence may be questioned, as Article 158(1) vests the power to interpret the Basic Law to the Standing Committee of the National People’s Congress (‘NPCSC’). [44] Despite Article 158(2) stating the HKSAR courts’ jurisdiction “to interpret on their own, in adjudicating cases, the provisions of this Law which are within the limits of the autonomy of the Region”,[45] Article 158(1) raises two ambiguities regarding judicial independence of the HKSAR. This includes whether the scope of an ‘interpretation’ by the NPCSC can amount to an encroachment on the judicial power of the CFA, and if Article 158(1) “confers freestanding and plenary power to the NPCSC” for such an interpretation. [46] The People’s Republic of China (‘PRC’) Constitution does not define ‘interpretation’ by the NPCSC.[47] The 1981 Resolution by the NPCSC [48] declared “that its power of interpretation encompasses both its powers to clarify and supplement or extend laws”.[49] As legislative interpretation is not conducted by the judiciary in the PRC’s political and legal system, it is ambiguous as whether to consider the NPCSC interpretation as ‘judicial’ in nature. For example, the NPCSC’s interpretation regarding Ng Ka Ling [50] did not consist of legal reasoning or analysis but was a statement that the CFA’s ruling was “not in conformity with the original legislative intent” of the law in question. [51] Despite this ambiguity, the effect of the NPCSC interpretations nonetheless results in an encroachment to the exclusive power conferred to the judiciary in a common law system.
R E F E R E N C E S Thus, Article 81 of the Basic Law in principle undermines Article 158 and illustrates how the common law tradition of judicial independence has been adapted in the HKSAR Basic Law. Turning to the second ambiguity, Article 158(3) requires a referral by the CFA “before making their final judgments which are not appealable, [to] seek an interpretation from the Standing Committee of the National People’s Congress” on matters relating to the Central People’s Government.[52] In the original judgment of Ng Ka Ling, [53] the predominant issue test was adopted by the CFA in that the predominant provision in question of its constitutionality was within the autonomy of the HKSAR, meaning referral to the NPCSC for the interpretation of the Basic Law was unnecessary. [54] This illustrates how Articles 158(2) and (3) of the Basic Law was initially construed to limit NPCSC intervention, and exhibited an attempt to retain independence of the HKSAR judiciary in the extent of judicial power to have autonomy over the power to engage in constitutional interpretation. However, the Oath Case [55] illustrates a challenge to judicial independence through the application of this plenary power in practice. The NPCSC interpretation was made when the CFA heard the case and subsequently “was about to deliver a reserved judgment on the validity of the oath of office taken by two legislators elected,” [56] which was a demonstration of the exercise of the NPCSC’s “freestanding and plenary” power to confer a binding interpretation of the Basic Law. The NPCSC interpretation consisted of the matters that the CFA was already going to decide, which can be viewed as an action motivated to influence the CFA’s decision and a disregard to the autonomy of its judicial power, undermining its judicial independence. [57] Furthermore, the Oath Case [58] illustrates a critical challenge to the exclusivity of judicial power in the HKSAR, as the NPCSC interpreted local legislation (the Oaths and Declarations Ordinance) despite Article 158(1) [59] of the Basic Law confining interpretation exclusively to “this law”.
IV. Conclusion It is evident that both Malaysia and the HKSAR have adopted and adapted the Westminster and common law tradition of judicial independence in their respective postcolonial constitutions, through safeguards on the appointment and security of tenure of judges and by construing the extent and exclusivity of judicial power through constitutional interpretation. Malaysia has incorporated safeguards to the appointment and security of tenure of superior court judges which has operated insufficiently in their postcolonial constitution, and the scope and extent of judicial power has left judicial independence in an ambiguous state. In contrast, the HKSAR has adopted seemingly robust procedural and substantive constitutional safeguards regarding the appointment and security of tenure of superior court judges but has also seen challenge to its judicial independence through constitutional ambiguities.
[1] Yeong Sien Seu, ‘Clarity or Controversy - The Meaning of Judicial Independence in Singapore and Malaysia’ (1992) 13 Singapore Law Review 85, 85. [2] Johannes Chan and C. L. Lim, Law of the Hong Kong Constitution (Sweet Maxwell, 3rd ed 2011) 306. [3] Federal Constitution (Malaysia) art 122B(1). [4] Shad Saleem Faruqi, ‘30th Anniversary of the 1988 Judicial Crisis: Lessons about the Importance of Judicial Independence and Impartiality’ (2018) 45(2) Journal of Malaysian and Comparative Law 25, 27-8. [5] Federal Constitution (Malaysia) arts 125(3), (4). [6] A. J. Harding, ‘The 1988 Constitutional Crisis in Malaysia’ (1990) 39(1) International and Comparative Law Quarterly 57, 68. [7]Sien Seu, ‘Clarity or Controversy - The Meaning of Judicial Independence in Singapore and Malaysia’ (n 1) 96. [8]Sien Seu, ‘Clarity or Controversy - The Meaning of Judicial Independence in Singapore and Malaysia’ (n 1) 98. [9]Harding, ‘The 1988 Constitutional Crisis in Malaysia’ (n 7) 68, 77. [10]Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (‘Basic Law’) art 88. [11]Ying Ngai Eric Hong, ‘Judicial Independence in Hong Kong: A Gift Left behind from the Colonial Times’ (2017) 26 Nottingham Law Journal 56, 68. [12] Hong, ‘Judicial Independence in Hong Kong: A Gift Left behind from the Colonial Times’ (n 13) 69. [13] Basic Law (n 12) art 89(1). [14] Hong, ‘Judicial Independence in Hong Kong: A Gift Left behind from the Colonial Times’ (n 13) 71. [15] Basic Law (n 12) art 89(1). [16] Ibid. [17] Hong, ‘Judicial Independence in Hong Kong: A Gift Left behind from the Colonial Times’ (n 13) 71. [18] Stock Exchange of Hong Kong Ltd v New World Development Co Ltd Ors [2006] 9 HKCFAR 234 (‘Stock Exchange of Hong Kong’). [19] Sien Seu, ‘Clarity or Controversy - The Meaning of Judicial Independence in Singapore and Malaysia’ (n 1) 86. [20] Federal Constitution (Malaysia) art 4. [21] Ah Thian v Government of Malaysia [1976] 2 MLJ 112, 113 (‘Ah Thian’). [22] Yvonne Tew, ‘On the Uneven Journey to Constitutional Redemption: The Malaysian Judiciary and Constitutional Politics’ (2016) 25(3) Washington International Law Journal 673, 678. [23] See generally Public Prosecutor v Dato Yap Peng [1987] 2 MLJ 311 [24] Ibid. [25] Ibid. [26] Sien Seu, ‘Clarity or Controversy - The Meaning of Judicial Independence in Singapore and Malaysia’ (n 1) 92. [27] Tew, ‘On the Uneven Journey to Constitutional Redemption: The Malaysian Judiciary and Constitutional Politics’ (n 26) 678. [28] Public Prosecutor v Kok Wah Kuan [2008] 1 M.L.J. 1 (‘Kok Wah Kuan’). [29] Ibid [33]-[34]. [30] Ibid [12]-[13], [17]-[18]. [31] Foo, ‘Malaysia - Death of a Separate Constitutional Judicial Power’ (n 29) 235. [32] Kok Wah Kuan (n 35) [11], [22]. [33] Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat & Another [2017] 3 MLJ 561 (‘Semenyih Jaya’). [34] Ibid [54], [86]. [35] Ibid [591]. [36] Ibid [74]-[76]. [37] Tze Vern Tay, ‘Basic Structure Revisited: The Case of Semenyih Jaya and the Defence of Fundamental Constitutional Principles in Malaysia’ (n 45) 137. [38] Ibid 135. [39] Basic Law (n 12) art 2, 19, 85. [40] Ibid art 2. [41] Hong, ‘Judicial Independence in Hong Kong: A Gift Left behind from the Colonial Times’ (n 13) 64. [42] Ibid art 85. [43] Hong, ‘Judicial Independence in Hong Kong: A Gift Left behind from the Colonial Times’ (n 13) 65. [44] Ibid art 158(1). [45] Basic Law (n 12) art 158(2). [46] Edelweiss Tsz Ching Tuet, ‘Constitutional Ambiguities, Hong Kong’s Autonomy and the Oath-Taking Saga’ (2018) 12 Hong Kong Journal of Legal Studies 59, 68. [47] Tsz Ching Tuet, ‘Constitutional Ambiguities, Hong Kong’s Autonomy and the Oath-Taking Saga (n 57) 64. [48] Resolution of the Standing Committee of the National People’s Congress Providing an Improved Interpretation of the Law, 1981. [49] Tsz Ching Tuet, ‘Constitutional Ambiguities, Hong Kong’s Autonomy and the Oath-Taking Saga (n 57) 65. [50] Ng Ka Ling v Director of Immigration (No 1) (1999) 2 HKCFAR 4 (‘Ng Ka Ling’). [51] Interpretation by the Standing Committee of the National People’s Congress Regarding Paragraph 4 in Article 22 and Category (3) of Paragraph 2 in Article 24 of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, 4. [52] Ibid art 158(3). [53] See generally Ng Ka Ling. [54] Ibid. [55] See generally Oath Case (n 62). [56] Ibid. [57] Ibid. [58] See generally Oath Case (n 62). [59] Basic Law (n 12) art 158(1).
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