Anu lss allens peppercorn 2009 issue 1 by Peppercorn

Peppercorn Issue 1 February 2009

HUMAN RIGHTS: AUSTRALIA FAIR? Bill Of Rights Debate Women And The Law Who Is Virginia Bell? Animals And The Law + More

Peppercorn | Issue 1 | February 2009 ANU Law Students’ Society | Fellows Road, ANU College of Law Editors Maiy Azize | Annabelle Craft | Haydn Flack Advertising ANU Law Students’ Society | lss@anu.edu.au Cover Graffiti by Banksy © Photohraph by Pawel Ryszawa © 2008 All photos and artworks lisenced under Creative Commons unless otherwise indicated

From the Editors | 5 From the Dean | 8

Peppercorn

Opinion Do We Need A Bill Of Rights? | 10 Senator George Brandis SC

Our Rights Are Not Protected: Why We Need a Bill of Rights | 12 NSW Council for Civil Liberties

Features Time For A Bill Of Rights | 14 Julian Burnside AO QC

Who Cares? Managing Flexibility In The Workplace | 20 Australian Human Rights Commission

Ultra-Violence: Masculinity, Law and Sadomasochism | 27 Anthony Hall

Articles and Letters A Reflection On Justice Virginia Bell | 18 Simon Rice OAM

Animals And The Law | 24 Ven. Alex Bruce

Law in the News | 31 The Freehills Summer Clerkship Experience | 32 Mark Smyth

The Aurora Project | 34 Kari Griffiths

Breaking Down Boundaries: Law For Social Justice | 36 Sue-Lin Wong

From the LSS From The President | 38 Paddy Mayoh

Careers Introduction | 39 Sarah Lynch

Administration Introduction | 39 Sam Thorpe

Finance Introduction | 40 Sagar Sritharan

News In Brief | 41 Upcoming Events | 43

February 2009

From the Editors

______________________________________________________________ Welcome to O-Week! We hope returning students have had a relaxing break, and we would like to extend a warm welcome to students starting at ANU for the first time this year. It’s been an eventful summer in the legal world, with Mick Dodson of the ANU recently being named Australian of the Year. Peppercorn congratulates the College and Professor Dodson. We know he will continue to lead the dialogue toward reconciliation for many years to come. Issue 1 has a strong focus on human rights, in light of the Federal Government’s ongoing consultations on the need or otherwise for legal protection of human rights in Australia. Our contributors are some of the country’s foremost experts and leaders in this debate. We hope you enjoy their pieces, and if you’re interested in contributing to the Government’s consultation, please visit humanrightsconsultation.gov.au. The recent retirement of Justice Michael Kirby has rightly drawn much attention, and we would like to join the countless voices praising Justice Kirby’s accomplishments and achievements over the years. The appointment of Justice Virginia Bell as his replacement has also drawn interest, and we’re very happy to be able to include a piece on the newest Judge of the High Court of Australia. We’d like to thank all of the contributors to the first issue and the Law Students’ Society for their support. Enjoy O-Week and good luck for the rest of the year! Maiy Azize, Annabelle Craft and Haydn Flack 2009 Peppercorn Editors

Contributors

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George Brandis SC George Brandis is the Shadow Attorney General. He was elected to the Australian Senate in 2000 representing Queensland for the Liberal Party of Australia. He served as Minister for the Arts and Sport in the Howard Government and was appointed Shadow Attorney General in December 2007. David Bernie David Bernie is a Sydney based Barrister. He studied law at the University of New South Wales and is the current Vice President of the NSW Council for Civil Liberties (Liberty NSW). Julian Burnside AO QC Julian Burnside is one of Australia’s leading human rights advocates. He has been involved in a number of high profile cases, including actions against the Australian Government over the Tampa crisis and acting for the Maritime Union of Australia during the Australian Waterfront Dispute. He was recently made an officer of the Order of Australia. Simon Rice OAM Simon Rice is an associate professor at the ANU College of Law. He has been Director of the NSW Law and Justice Foundation and President of Australian Lawyers for Human Rights. He was awarded a Medal in the Order of Australia for legal services to the economically and socially disadvantaged. Elizabeth Broderick Elizabeth Broderick is the Federal Sex Discrimination Commissioner. Prior to her appointment, she was a partner at one of Australia’s leading law firms, Blake Dawson, and developed the firm’s business case for flexibility in the workplace. Ven. Alex Bruce Alex Bruce has been a senior lecturer at the ANU College of Law since 1999. He organised and moderated the One World: Many Paths to Peace Interreligious Symposium with His Holiness the Dalai Lama. In 2007, he was awarded Vice Chancellor’s Award for Community Outreach. 6

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Anthony Hall Anthony Hall is a law student at the Australian National University. Mark Smyth Mark Smyth is a law student at the Australian National University and former President of the ANU Law Student Society. Kari Griffiths Kari Griffiths is a law student at the Australian National University. She recently completed the Aurora Internship. Sue-Lin Wong Sue-Lin Wong is a law student at the Australian National University and a current Vice President of the ANU Law Student Society. Paddy Mayoh Paddy Mayoh is a law student at the Australian National University and current President of the ANU Law Student Society.

From the Dean

______________________________________________________________ As I sit down to write this welcome to you, first year students embarking on a new experience as well as later year students returning with the wisdom of their experience, the global financial crisis is beginning to bite. The Vice Chancellor has just announced a freeze on all new staff appointments. Given the range and quality of our existing staff in the ANU College of Law, we will be in good shape for 2009, though it will be disappointing that we will not to be able to continue to build, especially in new areas that are in high demand such as Chinese law. The direction and duration of the crisis are hard to foretell, but, interestingly, bad economic times often see an upsurge in student demand for university places, undergraduate and postgraduate, as individuals are moved to invest in better qualifications to face an uncertain future. This should continue to underwrite our ability at the College to provide high quality programs, even as the economy deteriorates. As I have explained in my welcome to first year students in the LSS First Year Guide for 2009, there will be a continuing need for lawyers, in good times and in bad. People will still need good advice to make effective their business transactions and other legal arrangements, though regrettably, we do see in bad times a shift to legal work in the area of bankruptcy and insolvency. Even more importantly, lawyers will remain pivotal to the achievement of a fair and just society. Their knowledge and skills are vital to the continuous improvement of the law and the operation of the legal system, and their understanding of the imperatives of justice and good governance is vital to promotion of the rule of law. I am delighted with the extent to which staff and students alike have embraced the College’s distinctive ethos of law reform and social justice, following a conversation about these matters that I started as far back as 2002. Yet, the role of lawyers in achieving a fair and just civil society is not well understood. One need think only of the current debate about whether we should have a national Bill of Rights. There are many arguments for and against, but to me, one of the most disappointing aspects of the debate has been the intemperate attack by conservative commentators (though perhaps I am just reading the wrong newspapers and the wrong blogs) on the lawyers and the role they are likely to play.

These commentators talk about the ‘human rights industry’, the ‘bonanza for lawyers’, out-of-control ‘judicial activists’, and ‘special interest groups’ such as gays and refugees. The suggestion is that the lawyers are in it just to make a buck. This, of course, is demeaning nonsense. Putting aside the point that all providers of services are entitled to fair remuneration for their services, the real point is that lawyers will always be needed to assist in the resolution of genuine disputes about the meaning and application of general legislative prescriptions to diverse factual situations.

Above| Dean of the ANU College of Law, Michael Coper ______________________________________________________________ This is exactly the kind of work that lawyers are equipped to do, in areas right across the law and going well beyond the application of a Bill of Rights. In many of these areas, and particularly in the area of human rights, there are few â&#x20AC;&#x2DC;right answersâ&#x20AC;&#x2122;, but rather, the need for a delicate balancing of competing interests. Lawyers are essential in subjecting these competing interests to rational argument and thereby facilitating a fair and just decision-making process. It is easy to bag the lawyers. Often the bagging comes from those who are too dogmatic to appreciate that there are often reasonable arguments on both sides of an argument, especially an argument about the application of a Bill of Rights. They see any argument contrary to the certitude of their beliefs as nit-picking or spurious. But certitude is a shaky thing. History contradicts the proponents of dogma. I am very proud of the graduates of the ANU College of Law. By and large, my observation is that many of you, perhaps most, come to the College with some vague and undefined aspiration to use the law to make the world a better place. May you, like many of your predecessors, go out into the world and make that vague and undefined aspiration a practical reality. My colleagues and I will then feel that we are doing something right. Professor Michael Coper Dean and Robert Garran Professor of Law

Do We Need a Bill of Rights?* By Senator George Brandis SC

Late last year, the Rudd Government announced the start of a public consultation process of the issue of whether there should be a federal Bill or Charter of Rights. The Opposition is deeply sceptical about the necessity for a Charter of Rights, and has serious misgivings about how such a charter would work. At the outset, I should make it clear what this debate should not be about. It should not be a debate about whether Australian citizens should enjoy the full range of civil, political and other rights which are defining characteristics of modern liberal democracies. That issue is uncontroversial. Rather, the debate is about the means, not ends. In particular, it is about two things: First, whether the protection of our rights would be better served by the enactment of a Bill of Rights than they are under the existing law. Second, whether the debate on the question of what substantive rights Australians should enjoy takes place in an open forum of elected and accountable Parliamentarians, or is determined by unelected and largely anonymous Judges in the cloisters of the Courts. Those issues will be ventilated more fully as the national debate progresses. Scepticism about a Charter is shared by both sides of politics, as witnessed by the scathing critiques essayed in recent months by former New South Wales La10 bor Premier Bob Carr and current New South Wales Attorney General John Hatzistergos.

The proposal has attracted considerable criticism from the senior levels of the Judiciary, including Ian Callinan, the Queensland Court of Appeal’s Pat Keane and New South Wales Chief Justice James Spigelman, the latter having revised his earlier support for the idea. The nature of the Government’s intentions remains obscure. Is it intended that a Charter will be a source of new rights? If so, what would they be? If, as seems more likely, the Charter is intended merely to be a codification of existing rights, what rights are to be included and which omitted? The experience with the two existing Charters, in Victoria and the Australian Capital Territory, has suggested an essentially ideological approach to the ‘recognition’ of certain rights but the disregarding of others, notably, property rights. What are the consequences of such omissions? Will a hierarchy of rights be created and, if so, according to what criteria? And will the result be more efficacious than the existing protections of human rights by Australian law? Another matter which the proponents of the Charter must meet is the charge that the effect of such a Charter will be the creation of public policy through litigation, by relocating argument about policy outcomes from elected Parliaments to the Courts. For example, Canadian Courts have struck down an incentive scheme to attract doctors to rural areas as a violation of ‘mobility rights.’

Are these the types of decisions which Judges should be making? There are two related vices in subjecting decisions about resource-allocation – the core function of the political process – to Judicial determination. First, it changes the discourse from an argument about how best to allocate resources to service the interests of society as a whole to an argument about the asserted rights of a particular individual. It changes an argument about social benefit to an argument about individual claims. And so, it decontextualises what should be a decision about public policy, in which the claims of all stakeholders are weighed against each other and placed in the context of overall social benefit, and replaces it with a litigious process in which all such considerations must yield to a claim of right, once established, and in which there are no – or very limited – opportunities for the voices of other interests to be heard. The second vice follows from the first: It means that decisions which determine social policy outcomes are transferred from the elected Government, answerable to a representative Parliament, to a Judiciary which is neither elected nor representative. This leads to another problem: by charging Judges to apply the law’s traditional decision-making

Above | Not convinced: Shadow Attorney General George Brandis Below Left | Consultations began in December and will conclude in May 2009

techniques to what are often properly matters of public policy, it risks exposing Judges to the complaint that they are acting politically, not Judicially, and thus potentially undermines the courts’ reputation for neutrality. To entrust this role to Parliament is not to be indifferent to individual rights. Rather, to take rights seriously, it is vital that they are balanced and weighed against each other in the most open and representative forum in our democracy. •

*Nb: This article was first published in Lawyers Weekly. 11

Our Rights Are Not Protected: Why We Need a Bill of Rights By David Bernie NSW Council for Civil Liberties

At present, Australia is the only western democracy without a charter or bill of rights. The main arguments against a charter seem to be that a charter shifts power from the elected politicians to the courts, and further, incredibly, that our rights are protected at common law.

All workers in this industry, whether or union members or officials or not, can be forced by a new commission to answer questions and provide information, including personal and private information. Failure to do so for individuals can result in fines of up to $22,000.

Incredible, because not only is common law actually judge made law, hence undermining the first argument against a charter, but all common law rights can, and often are, taken away by legislation passed by parliaments.

New sedition laws passed by the last parliament provided a new threat of criminal prosecution and gaol against freedom of expression and criticism of government policy.

At common law, you could only be detained if you were suspected of an offence. New laws in Australia take away that right. Under the new ASIO powers, a journalist can be detained for simply having information about a terrorist offence, even if not suspected of any offence. Further, such detention is automatically secret so if another journalist were to publish the fact that their colleague had been so detained, the second journalist could be sent to gaol for up to 5 years. Further amendments to anti-terrorism laws allow for witnesses, who are not suspects, to be detained and severely restricted from even contacting their family. At common law, you had a right to remain silent and not to have to incriminate yourself in proceedings. In Australia, these rights have been completely swept away by legislation in 2005 and no longer apply to all or any workers in the 12 building and construction industry.

Senator Brandis supported or voted for all of the above pieces of legislation in the Senate. Legislation by its very nature modifies or takes away common law rights. Many people wrongly believe these rights are specially protected, but in Australia, they are not. The so-called common law rights simply provide no protection against the increasing raft of laws passed by parliament giving more power to government agencies and taking away your rights. Opponents of a charter say the parliament, as democratically elected, is accountable for this legislation. But, at an election, all sorts of issues, usually economic ones, dominate and little consideration is given to individual rights, particularly those of the less powerful in society. Laws are often rushed though in a heated political atmosphere where all sides claim to be â&#x20AC;&#x153;tougherâ&#x20AC;? than the other.

Often, parliament also passes laws giving more powers and they are later used or abused in ways not envisaged at the time. This happened in the Haneef case. The government told a parliamentary committee at the time of passing new detention powers that it did not expect to use the new powers to detain a suspect for more than 48 hours, but then the AFP did so for a matter of weeks. In the Rudd government, Senator Conroy is planning a new mandatory internet censorship scheme modelled on the Chinese system for â&#x20AC;&#x153;inappropriate,â&#x20AC;? as opposed to illegal, sites, with decisions to made in secret by the government with no reasons given about which sites will be banned and there will be no review. The government will be able to do this without any further recourse to the elected parliament by using its existing licensing powers for ISPs granted by previous legislation. In NSW, a private company has been granted exclusive rights to approve and sell outdoor advertising but has rejected ads from an atheist group without giving any reason. In each of these cases, I do not think that the elected legislature or even government of the day envisaged that these powers would be used in that way. A charter provides a way of revisiting the granting and use of extensive powers at a later stage.

Australia was a foundation signatory to the International Declaration of Human Rights over 50 years ago. We have ratified the International Covenant on Civil and Political Rights and rightly criticise nations that breach human rights. It is time that these provisions are given some force in our legal system rather that just grand statements of intention. â&#x20AC;˘

It would not be a major tipping of power in favour of the courts. As the present government has ruled out a constitutional bill of rights, the most a court could do under a proposed charter would be to declare a bill in breach of the charter. This could have the effect of nullifying the law or referring the legislation back to parliament, depending on the charter model adopted. In either case, the elected parliament would still hold the last word on whether to amend the charter or legislation.

Time for a Bill of Rights By Julian Burnside AO QC

In the aftermath of World War II, as the world held its breath at the awesome display of human wickedness which had unfolded during the previous decade, it looked as though the second half of the 20th Century might, redeem the first. In 1948, the Universal Declaration of Human Rights opened a new era in human rights thinking. Its prefatory words set the tone: Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people, Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law â&#x20AC;Ś The Declaration articulated the essential values of a dignified human existence. Subsequently, the International Covenant on Civil and Political Rights embodied as binding commitments most of the ideals of the Universal Declaration. 14 It makes great promises.

Its signatories, almost every country in the world, promise each other to secure for their citizens the essentials of a dignified human existence. At the 2020 Summit in Canberra in April 2008, a view emerged strongly that Australia should have a Federal Bill of Rights. That call, fairly predictable in the circumstances, triggered a series of public speeches and papers as Cardinal Pell, Bob Carr and others raised their voices against a Bill of Rights. Since a national consultation was announced, the clamour restarted. These pre-emptive strikes against the possibility of a Federal Bill of Rights have one thing in common: they do not identify what sort of Bill of Rights they are opposed to. Some of the criticisms might be valid if the proposal was for a US-style Bill of Rights. So far as I am aware, no-one in Australia is pushing for a US-style Bill of Rights. Modern Bills of Right do not concern themselves with the right to bear arms or the quartering of soldiers. They are concerned instead with the sort of rights recognized by the Universal Declaration of Human Rights: equality before the law, the right to life, protection from torture and cruel inhuman or degrading treatment, freedom from forced work, freedom of movement, privacy and reputation, freedom of thought, conscience, religion and belief; freedom of expression, peaceful assembly and freedom of association, protection of families and children, humane treatment when deprived of liberty, and so on.

It would be difficult to find any serious disagreement about the importance of those rights. The disagreement arises when the question of protecting them is in issue. Broadly speaking, a modern bill of rights can be a weak model or a strong one; and it can be an ordinary statute or constitutionally entrenched. The arguments for and against a bill of rights change profoundly according to the model under discussion. Statutory bills of rights can be disregarded or repealed if the Parliament so wishes. A constitutional bill of rights, on the other hand, cannot be repealed or altered except by referendum. A strong model Charter creates rights of action: if a person’s rights are breached, they may be able to sue for damages. A strong model may also forbid Parliament to do certain things and thereby directly limit the power of the Parliament. A weak model simply requires Parliament to take protected rights into account when passing legislation. If they wish to disregard those rights, they must say so plainly. Parliament may choose to disregard rights which it has previously resolved to respect, but it will be politically accountable if it does. In addition, a weak model guides Judges in the way they should interpret legislation, so as to preserve rights rather than defeat them. The ACT and Victoria both have statutory, weak Charters of Rights. So long as the public and the conservative commentators find it alarming to protect rights, a weak statutory model is a good solution. It is usual to see a range of arguments put up against adoption of a Bill of Rights. The standard ones are as follows: i Our rights are adequately protected by the majesty of the Common Law; ii It is anti-democratic because it would transfer power from Parliament to unelected, unrepresentative judges;

iii They do not work; iv A Bill of Rights will be a Lawyers’ Feast. Let me deal with each of these in turn. Our Rights are Already Protected Within the scope of its legislative competence, Parliament’s power is unlimited. The classic example of this is that, if Parliament has power to make laws with respect to children, it could validly pass a law which required all blue-eyed babies to be killed at birth. The law, although terrible, would be valid. One response to this is that a democratic system allows that government to be thrown out at the next election. This is not much comfort for the blue-eyed babies born in the meantime. And even this democratic correction may not be enough: if blue-eyed people are an unpopular minority, the majority may prefer to return the government to power. The Nuremberg laws of Germany in the 1930s were horrifying, but were constitutionally valid laws which attracted the support of many Germans. Generally, Parliament’s powers are defined by reference to subject matter. Within a head of power, Parliament can do pretty much what it likes. Thus, the Commonwealth’s power to make laws with respect to immigration has in fact been interpreted by the High Court as justifying a law which permits an innocent person to be held in immigration detention for life, where he is liable for the daily cost of his own detention. The question, then, is this: Should we have some mechanism which prevents parliaments from making laws which are unjust, or which offend basic values, even if those laws are otherwise within the scope of Parliament’s powers? If such a mechanism is thought useful, it is likely to be called a Bill of Rights, or Charter of Rights, or something similar. In November 2003, two cases were heard by the High Court. Together, they tested key aspects of the system of mandatory detention. 15

One was the case of Mr Al-Kateb. He arrived in Australia as a boat person and sought asylum. He was placed in immigration detention because the Migration Act says that a non-citizen who does not have a visa must be detained and must remain in detention until they are given a visa or they are removed from Australia. He was refused a visa. He could not bear it in Woomera and asked to be removed, rather than wait out a year or two by appealing. It was not possible to remove him from Australia, because he was stateless: there was nowhere to remove him to. The government’s argument was that, although Mr al Kateb has committed no offence, he could be kept in detention for the rest of his life. On 6 August 2004, the High Court by a majority of 4 to 3 accepted that argument. The other case, heard alongside al Kateb and decided on the same day, was Behrooz. Mr Behrooz came from Iran, sought asylum and found himself in the endless loop of rejection and appeal before escaping in November 2001. At that time, Woomera was carrying three times as many people as it was designed to carry. The conditions there were abominable. The Immigration Detention Advisory Group, the government’s own appointed body, described Woomera as “a human tragedy of unknowable proportions”.

These cases are a clear illustration of the problem that, if Parliament decides to make a law which destroys basic rights, the Common Law is unable to prevent that result.

Mr Behrooz found it so intolerable that he escaped, along with some others. He was charged with escaping from immigration detention. The question in the case was whether such conditions were legally authorised by the Migration Act. The government argued that no matter how inhumane the conditions are, detention in those conditions is nevertheless legally and constitutionally valid.

It is Anti-Democratic, Because it Transfers Power to Judges In one sense, it is true that a Bill of Rights gives power to judges. A Bill of Rights limits the power of Parliament but not by reference to subject matter. A modern Bill of Rights introduces, or records, a set of basic values which should be observed by parliament when making laws on matters over which it has legislative power. It sets the baseline of human rights standards on which Society has agreed. Because this is so, it is wrong to say that a Bill of Rights abdicates democratic power in favour of unelected judges. Judges simply apply the law passed by the parliament. That is their role. Many cases raise questions about Parliament’s powers. Judges are the umpires who decide whether Parliament has gone beyond the bounds of its power. A Bill of Rights is a democratically created document, like other statutes. Enforcing it is not undemocratic at all.

On 6 August 2004, the High Court accepted the government’s argument. Thus, on the same day the High Court held that it is constitutionally valid in Australia to hold an innocent person for life, the High Court held that the same 16 principles apply even in the worst conditions.

They Do Not work One of the favourite back-handers to dismiss a Bill of Rights is that they don’t work. After all, the argument goes, the USSR had a splendid Bill of Rights, and so does Zimbabwe, but look what has happened in those countries.

They have a point, of course, but it is not a point about a Bill of Rights. It is a point about the rule of law. No Constitution, no Bill of Rights, no statute, no other document, can protect rights unless the rule of law is strong. That is not our problem in Australia. Our Judges are competent, hardworking and independent of the other arms of government. While I have disagreed with many judgments in Australian courts, I have never doubted the honesty or integrity of our judges. The same is not true of the USSR or Zimbabwe. Guantanamo Bay provides both a challenge and a demonstration of this point. President George W Bush chose Guantanamo Bay in Cuba as a place of detention specifically to avoid the reach of American courts and the principle of legality; he chose it in order to place detainees beyond the protection of the Constitution and the Bill of Rights. He failed. In case after case, the US Supreme Court has held that the protection of the Constitution reaches Guantanamo. Although it has taken a long time to expose the fraud and cruelty of Guantanamo, the fact that Bush chose Guantanamo, rather than some place on American soil, is mute testament to the power of a Bill of Rights and the rule of law. Bush chose Guantanamo in order to side-step the rule of law. The Supreme Court has gradually dismantled that plan. Most recently, in the Boumediene case, the Supreme Court struck down that part of the Military Commissions Act which purported to deny Guantanamo detainees the right to seek habeas corpus. Habeas corpus is the legal equivalent of a canary in the coal mine. When governments interfere with the right to challenge the lawfulness of a person’s detention, you can be sure that all is not well.

The Lawyers’ Feast argument is a coded way of saying that lawyers want a bill of rights because it will generate lucrative work for them. The argument is false. In Australia today, the people who need a bill of rights, the people whose rights are denied or disregarded, are almost always at the margins of society. They cannot afford to pay lawyers. Most human rights work in Australia today is done for no fee. Some is funded so that the lawyers receive some payment, usually a very small percentage of ordinary rates. No-one does human rights work to get rich, because human rights work cannot make you rich. Conclusion The Universal Declaration of Human Rights was entered into force on the 10th December, 1948 – 60 years ago this year. Doc Evatt presided over the General Assembly that day. Australia now is the only Western democracy which does not have a Bill of Rights. The last decade at least has shown that we need one. It’s time we had one. •

Lawyers’ Feast This argument is a popular one, because everyone hates lawyers, and every one loves a feast. Anything which is going to make lawyers happy Above | Julian Burnside has been a leading human rights advocate for almost three decades. is a bad thing. 17

A Reflection on Justice Virginia Bell By Simon Rice OAM

It is now notorious that the most recent appointment to the High Court, Justice Virginia Bell, once worked as a solicitor at Redfern Legal Centre in Sydney. Many, including Justice Bell at her swearing in, have remarked that it is a long way from Redfern to the High Court. In at least one very important way, I don’t think it is. To the contrary, Bell’s appointment shows us a close connection between the two institutions.1 The distance between Redfern and the High Court is much more than 300 km. The austere concrete and wooden panelled spaces of the High Court could not be further from the cramped and shabby warren of rooms, corridors and staircases in Redfern Town Hall. The subsequent ‘heritage’ refurbishment hasn’t brought the inner-city Town Hall much closer to the lakeside tower of the High Court. But the claims of distance between the two are not made for mileage or appearance or for other obvious contrasts such as resources, ceremony, and reputation – as much as for a sense of what the two places are about: could the business of the High Court be any more removed from the business of Redfern Legal Centre? Could the lawyers working there being any more different? Well, yes, actually. Here’s why.

It is appropriate I think, but it feels odd, for me to refer to Her Honour as ‘Bell’ and not as ‘Virginia’, or ‘VB’. She is a friend, with whom I worked at Redfern Legal Centre, as a volunteer when she was a solicitor there, and as a solicitor when she was on the management committee.

I had dropped out of my law degree and returned to it. Somehow I found myself joining the student volunteer roster at Redfern Legal Centre. The initial appeal was that it was hugely exciting – the place buzzed. Community legal centres were new entities, outriders in the legal system. Many of the same people who started the centres were members of organisations such as the Australian Legal Workers Group, the Feminist Legal Action Group, the Prisoners Action Group, and Women behind Bars; they defended the Gay Mardi Gras campaigners and established a prisoners’ legal service, they campaigned for drug reform and against police verbals. And they were there, on duty day and night, for local people in trouble or need. Suddenly law was a palpable presence for me: I saw law’s power as an active force in people’s lives, at times a burden and at times a solution, threatening livelihood and liberty, and offering protection and security. I saw too those who dealt with the law’s power: lawyers who knew how law worked, who could grab it from the shelves, draw it down from their experience, explain it, shape it and use it. The Centre’s lawyers would write the law down and talk it up, throw it around in police stations and tease it out in court, reflect on it late into the night and pore over it in the early hours of the morning. I learnt not only the existential interdependence of law and society, but also the

Above | Justice Virginia Bell (right) with her mother, Mary.

lawyer’s central role in mediating this relationship. Now that, for me, is not far at all from the business of the High Court. Bell was one of those lawyers. Her clients were in gaol or on bail or on parole or at the police station or in the dock. They were poor or unwell or homeless or junkies or oppressed or vilified. Commentators see the relevance of this experience to Bell’s High Court appointment in, they rightly assume, an empathy for those whom – we were told at the swearing in – Herbert Vere Evatt called ‘the little people’. That might be right, but we’ll have to see what that means in practice on the High Court bench. More importantly than whom Bell acted for was the way that she did it. She was smart, sharp, quick, and completely committed to getting the best result for her clients. If evidence is needed of Bell’s formidable reputation while at Redfern Legal Centre, it is in the lyrics of ‘Police Verbals’ by Sydney punk band Mutant Death, who sang (if that’s not too generous a term): ‘I was being verballed, I was being bashed / And the law couldn’t help ‘cause I didn’t have the cash / I woke up next morning, still bleeding in my cell

/ Got on to Redfern Legal Centre, spoke to Virginia Bell’. I learnt from Bell, and the other lawyers, that to be a good legal centre lawyer, you need to be a very good lawyer. Resources are limited and the opponents are well resourced, time is tight, the clients are needy, the law is complex and the stakes are high. The clients rarely have more going for them than a committed lawyer and a novel legal strategy. A good legal centre lawyer has to know the law, understand its policy, overcome its limitations and exploit its possibilities. Bell was not alone in her legal ability at Redfern Legal Centre; her contemporaries – who taught and mentored and inspired me – and many legal centre lawyers since, have gone on to similarly high office: judges, magistrates, senior barristers and bureaucrats, law deans, law reform chairs, law firm partners. A good legal centre lawyer is a very good lawyer indeed. High Court material, in fact. •

Who Cares? Managing Flexibility in the Workplace By Elizabeth Broderick, Federal Sex Discrimination Commissioner Australian Human Rights Commission

Several years ago now, I was asked to deliver a speech at one of the regional law societies. They were trying to attract more female lawyers as members. I was asked if would I speak on flexible work practice. No sooner had I mentioned the words “part-time work,” than a gentleman at the front stood up and demanded: “You’re not suggesting that lawyers could work part-time, are you?” “Yes,” I said. “Well who’s going to look after the children?” “Sorry?” “Well who’s going to look after the children?” “Well if you’re suggesting that mothers can’t be practising lawyers I’m afraid we will have to agree to disagree.” “That’s exactly what I’m suggesting!” “Can I ask you then: Why are we wasting tax payers’ money educating women and then allowing them to think they can be productive in the paid workforce?” “Why are we?” he said. “Do you have a daughter?” I asked. “Yes”. “Are you educating her?” “Yes, I am but maybe I shouldn’t be!” It was the first time I realised the depth of emotion that a discussion about flexible work can invoke! I first came to flexible work about 12 years ago. I was a partner at Blake Dawson, and had grown the Legal Technology Group, which practised at the intersection of technology 20 and law. Five years after the group had been

established, I had a day at work where one of my lawyers popped into my office to tell me she was pregnant. The same afternoon, another senior manager came to see me with the same news. What they didn’t know was that I also was pregnant. And, when three weeks later a fourth lawyer joined the mother-to-be queue, we knew we had a problem. That was half the entire team that would be out on maternity leave at one time. As the person in charge of the team, I had to find solutions and find them fast. With four of the team pregnant, we now had a solid business reason to reinvent the way we worked. We developed a program where the ultimate responsibility for matters rested with the individual, whether or not they worked full or part-time. And, if a flexible worker needed to come in on a non-designated work day and could not arrange childcare at short notice, they could bring in the kids. They also agreed to carry a mobile phone when away from their home, and to access their e-mail account at least once a day. I wanted each of our flexible workers to remain just as committed to the firm as they had been before they had their maternity leave, and this meant that they maintained their previous position and level of seniority. We were determined to make flexibility work. As a business owner and people manager, workplace

flexibility allowed me to build a supportive and productive environment like nothing else. We didn’t set out to change the world, but to make flexibility work in our small team. That had some amazing flow on impacts, and Blake Dawson are now at a stage where in excess of 20% of the workforce works in a flexible work arrangement. As a long time advocate for flexible work arrangements, I have now come to a point where I am concerned that the rhetoric is not matching the reality. It seems to me we have done the easy part. We have now progressed to the stage that I call DIY Flexibility or MY Flexibility, where an employee requests flexible work often to balance work and family responsibilities and a well intentioned employer runs around to make sure this individual is accommodated. Invariably, the result is a six day per week job squashed into three days, with all too predictable results. What we haven’t seen as yet is flexibility being embraced as business opportunity. By that, I mean organisations embracing flexibility so as to offer new services or to access a significant new talent pool in a manner that works. I think the reason we haven’t seen this is that it requires job redesign. Job redesign is at the heart of true flexible work practice that delivers for both the business and the individual. Job redesign is not easy, particularly in an era where time billing is still the predominant method of billing. To be successful, it also requires the redesign of a number of the supporting systems that underpin work. Having effective flexible work practice also means confronting significant attitudinal barriers, such as deeply held prejudices about men and women’s roles in both the family and paid work. A recent study in Victoria found that while about 56% of practising lawyers under 40 were women, at 40 that number almost halved to around 25%. There are no prizes for guessing why. By that time many women have had children, and are

struggling with the familiar juggling act of managing a career and caring for their children. Although law firms are becoming more open to the idea of flexible working arrangements mainly part time work, working from home and jobsharing research shows that women who adopt those flexible working arrangements pay a high price in career terms. Most women find that the quality of the work they receive declines. They are less often on the partnership track and promoted less quickly than their full-time counterparts. Further, both men and women who elect to work flexible hours are seen as lacking the commitment or ambition of full-time lawyers. For many, it is just not worth it, and they leave law firms in favour of a job in government, or as an in-house lawyer, where flexible work practices are better managed. Some simply leave the law or cease work altogether. There are other traps for women and men who wish to work flexible hours. Many are sidelined to legal support functions or guided into the area of ‘knowledge management’; that is, drafting and updating precedents. Whilst some lawyers prefer support and knowledge functions, for many this career path is not their first choice. Other lawyers are paid to work part-time, but are expected to be available at the end of a Blackberry all day, including their days off. In the United States, this is becoming known as ‘schedule creep.’ A study was recently released by Beaton Consulting. In the study, Professor Duxbury, a Canadian academic, surveyed 12,000 white-collar workers across professional services, government departments and and publicly listed companies in Australia. Respondents were asked about their working and caring roles, and how they were managing to combine both. The report drew conclusions about the extent of work-life conflict and how this affected an individual’s decision to 21 stay in their role.

Flexibility in law firms| The key to keeping women in the workplace?

The report confirms what we always suspected: That knowledge workers who experience particular forms of work-life conflict, such as high work demands interfering with family, are almost three times more likely to be looking for another job than those who don’t. Of particular concern was the study’s finding that part-time work was not the panacea we might have thought. Those showing one of the highest levels of work-life overload were professionals in flexible work arrangements.

I found, not surprisingly, that they were dealing with exactly the same issues in their own workforce. 100% of clients interviewed were supportive of flexible working for certain roles, although there were some carve outs where a lawyer was the lead transactional lawyer on the matter.

The elephant in the room is working hours. Everyone knows that long hours are one of the main reasons many, not just women, leave law. Many will argue that the extended hours are a direct result of client demands, but, I would argue that in certain cases, extended working hours are often a result of unmanaged client expectations and insufficient job redesign. Whilst there is no doubt that a number of the leading transactional roles cannot be performed in a flexible work arrangement, these roles are in the minority.

A good starting point is to reframe the issue as a significant business issue. Flexible work is not about being nice to women or men with caring responsibilities. This is about smart business practice. The problem for law firms is a catch 22. If they can’t adapt the work practice to retain more women and stem the flow particularly in those critical mid-career years, then they must recruit from a junior pool that is increasingly female (68.8%, according to a 2006 Australian Graduate Survey).

This view was reinforced in a recent survey in which clients rejected the assumption that they were opposed to working with a lawyer using flexible work practices, and stated that they were more concerned with the quality, cost and results of legal services. This aligns with a series of interviews I did with Blake Dawson’s top ten 22 clients on the topic of flexible work.

The focus must be on outcomes rather than inputs, and, on the innovative use of technology so individuals can work productively from anywhere, at any time, in a way that corresponds to their caring responsibilities. It is the re-conceptualisation of work and innovation in job redesign that will mark out the high-performing companies in what is now a very competitive marketplace.

So what can we do? How can we create an environment that is conducive to retaining women, and increasingly men? An environment where flexible work delivers for both the firm and the individual?

The second step is to work to change the mentality which labels those who want a life outside law as less committed or less ambitious, and so, less worthy of promotion. In the words of the Hon Marilyn Warren, Chief Justice of the Supreme Court of Victoria: “Women and their supporters should redefine ambition to encompass excellence and achievement but with flexibility and balance. Having a family and nurturing it should never be portrayed as the abandonment of ambition. Ambition...should include the option of being the best parent and the best lawyer.” Step three, access to high quality part-time work is vital, and it must go beyond squashing a six day a week job into three and a half days. Quality part-time work should be an option for women and men at all levels of the organisation, including in equity partner roles. It’s also about control. It is clear there is no one-size-fits-all solution. Jobs must be redesigned so that control is delivered back to individual professionals, so their work-life balance needs can be met. There must be supports in place. Paid maternity leave, study support, leave of absence, strong mentoring, and, most importantly, role models who represent the diversity of men and women’s choices. We need to ensure the principles of workplace flexibility underpin all work arrangements. Work practices must be examined with the aim of sharing those that work and discarding those that don’t. We need flexibility that cuts both ways, for both the business and the individual. Flexibility can provide business with competitive advantage. It is sometimes easier for small business to attract and retain staff by promoting and providing greater flexibility than those lawyers are likely to get in large firms. This is particularly successful where there is strong communication between employer and employee. In the area of flexibility, small firms often have an edge over large firms, and can offer a work practice that is very desirable in the market.

Finally, within firms, we need to broaden the understanding of these issues and the responsibility for bringing our most capable people through regardless of work practice and gender. This includes measuring in a systematic manner how we are going at all levels of the firm, identifying barriers and designing solutions to remove them. We need our male and female leaders modelling alternative work practice. You can’t be what you can’t see. Where are all the successful male partners working in flexible work arrangements? As the Sex Discrimination Commissioner, I can talk about work and family balance, but if I’m not practising it and modelling it, I don’t have credibility. I was pondering this thought in my first week, and wondering how I could combine the demands of my Australia wide listening tour with being a mum. I decided to take the kids on the tour with me. People in public life and senior roles need to model work and family balance, and that applies equally to men and women. It is a critical mass of women and men with caring responsibilities which is going to bring about the change we need in workplaces, and over time, ensure that senior roles are opened up to the most talented men and women. I’m pleased to report that I have also successfully negotiated my own flexible work arrangement at at the Human Rights and Equal Opportunity Commission, where I will continue to work full-time but pick my kids up two afternoons a week. If the Sex Discrimination Commissioner can’t do it, who can? Careers are rarely made or derailed by a single decision. The career outcomes for most people are the result of thousands of small decisions they make every day. In a highly competitive labour market, remuneration should be but one part of the package. For working women and men, having the flexibility to attend your child’s soccer final or their first school recital may be priceless. For employers, this flexibility may be the key to securing competitive advantage. •

Animals and the Law By Ven. Alex Bruce

You know that kind of stunned silence that comes after youâ&#x20AC;&#x2122;ve said something strange or embarrassing? Well, that was the reaction of quite a few people after I said I wanted to write and teach a subject called Animals and the Law. They usually repeated it, Animals and the Law, earnestly searching my eyes as they stalled for time, wondering how to respond.

another case of cruelty toward animals. Apparently 2008 was the worst year for the number and severity of animal cruelty cases. Like you, I could see the hypocrisy of scientific whale slaughter, I saw my sister and my female friends make the decision to shop around for cosmetics that were not tested on animals, I saw the extent to which organised crime groups were perpetuating the international wildlife smuggling industry, I read about xenotransplantation and genetic cybrids, my friends in the Qld Police Service often told me about the link between animal cruelty and domestic violence, I wondered about the legality of protesters ramming Japanese whaling ships and breaking into animal factories to secretly film the slaughter. I wondered about the environmental impact of animal farming and of the exploitation of animals for our entertainment.

However, the ANU College of Law being what it is (honestly the best and most fulfilling community of professionals with whom I have ever worked), most of my colleagues were very enthusiastic about the idea and offered all kinds of support as I struggled through the process of writing and defending the proposal before the relevant committees seeking official approval. Happily, my submission was accepted and Animals and the Law now forms part of the undergraduate elective program for Semester One, 2009. I read that in March 2008, the President of the Australian Law Reform Commission, Professor So, why create this subject, and whatâ&#x20AC;&#x2122;s it all about David Weisbrot, suggested that animal welfare anyway? is likely to become the next great social justice movement in Australia. Well, I really like animals, always have, always will. Animals are intimately connected with our If it is true that Ghandi said that the greatness daily lives. This connection is sometimes obvi- of a nation and its moral progress can be judged ous, evidenced by our pets, care companions, by the way its animals are treated, then the exguide dogs and animals in other social support tent to which we afford respect and protection to roles, and sometimes it is not, as in the content animals is an indicator of the ethical maturity of of our diet and in the many cosmetics, clothes, our society. What this means is that the way in fertilizers and other products that are made of which our society exploits animals for our enteranimals. tainment, pleasure and consumption raises profound moral, ethical and legal issues. 24 Like you, I feel sick when I see news of yet

As I began to dig down into these moral, ethical and legal issues, I discovered that many law schools in the United States were offering animal law subjects that specifically considered these issues. I also discovered that there were several refereed academic journals devoted to the area of animals and the law. Clearly, animals and the law was a respected, if newly emerging, academic discipline. I discovered that since 2005, several Australian law schools had also been offering animals and the law as a subject, whether at undergraduate or postgraduate level. In 2008, Australiaâ&#x20AC;&#x2122;s first peer-reviewed journal, the Australian Animal

Protection Law Journal, was launched. I have contributed an article concerning Animals and the Trade Practices Act to this journal, which has been accepted for publication in the next edition. Digging deeper, I found a whole network of legal advocacy groups in Australia committed to animals and the law. These include the impressively organised national advocacy group Voiceless, whose ambassador is the actor Hugo Weaving, BLEATS, a Brisbane-based group of barristers and solicitors devoted to raising awareness of animals before the law, and, the Victorian Bar Associationâ&#x20AC;&#x2122;s Barristers Animal Welfare Panel. 25

These organisations undertake an astonishing range of activities, from animal advocacy to public education campaigns to submissions to Parliamentary Committees considering issues that might involve animals, such as the 2008 Senate Inquiry into Climate Change and the Australian Agricultural Sector.

and evaluated through the insights of other academic disciplines such as philosophy, economics and science. This approach will provide us with an opportunity for critical reflection on the legal and ethical interaction between humans and animals as manifested in the law.

We will evaluate the way in which animals are conceptualised in law, including underlying philosophical assumptions, and the way the legal system influences the interests of animals. In this way, our examination of animals through prevailing and traditional legal doctrines will be critiqued

I hope some of you will consider joining me in exploring these issues and maybe we can focus our scholarship and inquiry so as to influence these debates for the better. â&#x20AC;˘

It takes a lot of work to establish a new elective So, what are we going to do with this new sub- subject, and not everyone was convinced that ject? Animals and the Law was a subject worthy of inclusion in the ANU College of Law elective Well, I have designed it to be inter-disciplinary program. I understand their concerns, and want in its approach. We will examine the legal sta- to address them. So, we have a responsibility to tus and regulation of the treatment of animals, ensure the academic integrity of this subject and not just as a function of established categories to make it work. This is a challenge I am really of law, such as property, but also within broader looking forward to because I sense animals and contexts that include an economic and scientific the law will be an important area of future nacontext, an environmental context, and the ethi- tional and international legal, ethical and social cal-political context. concern.

Animals and the Law will be offered in Semester 1, 2009.

Ultra-Violence: Masculinity, Law and Sadomasochism By Anthony Hall

In Stanley Kuberick’s cinematic masterpiece A Clockwork Orange, the character of Alex and his Droogs achieve their desired lashings of violence despite the best efforts of the law. Past commentary on violent men has focused on the need or inability of the criminal law to control them. Yet, far from preventing, punishing or reforming violent masculinities, the law plays a major role in their creation. Violent Masculinity Contrary to popular belief, masculinity is not a biological phenomenon. Rather, it is a loose configuration of behaviours, attitudes and appearances recognized by a particular society at a particular point in history as ‘male’. Specifically, masculinity is the product of gender relations. These consist of the relations of power, production and catharsis between men and women though which bodily practices are configured into a reproductive arena. It is a tangle of gender norms revolving around sexual arousal and intercourse, childbirth and infant care, bodily sex difference and similarity. At this point in history, masculinity revolves around hegemonic and deviant masculinities. The current hegemonic male is strong, silent, aggressive and largely heterosexual, while the current deviant male is cowardly, emotional and generally homosexual. Say, Hugh Jackman in Australia compared with Hugh Jackman in The Boy from Oz.

As this hegemonic/deviant division suggests, masculinity has been partially configured around a binary of ‘active-passive’. ‘Activity,’ or aggression, sexual penetration and domination are viewed as normal elements of hegemonic masculinity. There is a corresponding rejection of ‘passivity’ or being penetrated, submissive or unnecessarily emotional, which is viewed as unmasculine. Aggression and actual or implicit violence are thus proof of, and expression of, being a man. The construct of what we consider masculine is linked with our criminal justice system and what Michel Foucault in Discipline and Punish terms the power to punish. In the judgement of crimes, judgement is also passed on bodily norms or truths. It is through such bodily judgement that the criminal law performs, subjects or governs bodies, including male bodies, into being. Such performative bodily judgements often emerge in what Foucault terms the shadows lurking behind the case, explanations of the criminal’s past, the act in question, aggravating circumstances and public policy considerations. Homosexual Deviance v. Heterosexual Play The relationship between power and knowledge conceived by Foucault may be applied to sadomasochism and the Victorian law of assault. Sadomasochism is traditionally viewed as a violent practice in which sexual pleasure is derived from either inflicting pain, sadism, or receiving pain, 27 masochism.

Above | Alex de Large: The unspoken norm of the law? 28

Assault is defined by the Crimes Act 1958 (Vic) as an act that intentionally or possibly recklessly causes another person to apprehend immediate and unlawful personal violence. Violence may be rendered lawful by consent, where an agreement exists between the parties in relation to the act. Violence, however, maintains a tenuous presence within the law of assault. While it is included in the definition of assault, it is not a requisite element of the offence. As detailed in the Supreme Court of Victoria’s decision in R v Butcher [1986]; there is no ‘legal definition of violence as such, inside or outside, which any particular act or threats may be said to fall. Nor is there any common law crime in which violence is by definition an element.’ It appears that violence is not unlawful per se, and will only be declared violent and unlawful if the law deems it necessary. Robert Cover broadly argues in Violence and the World that the law, in seeking to prevent violence, cannot avoid enacting a violence of its own. I would extend Cover’s logic by arguing that law is violence. The criminal law does not simply enact violence, but creates ideas of violence and also violent bodies onto which punishment is imposed.

bodily identities of masculinity, and the regulation of sadomasochism as opposed to the regulation of other homosocial or heterosexual male practices. The trope of violence is deployed to create narratives of ‘violent’ and ‘not-violent’ consensual, harmful and injurious male bodily force. Far from preventing, repressing or rehabilitating a violent masculinity, the law of assault plays a role in his creation, perpetuating gender configurations of an active and implicitly violent ‘male’. In sum, I hope to expose the A Clockwork Orange’s Alex de Large of the law of assault: synthetic eye-lash, cod-piece and all. In R v McIntosh, the accused, Rodney McIntosh, pleaded guilty to the manslaughter of his homosexual partner Raymond Lee. In a consensual act of sadomasochism and without any intention of causing harm, Rodney placed a rope around Raymond’s neck in order to heighten sexual pleasure which resulted in Raymond’s death. In the course of sentencing, Justice Vincent briefly set out his understanding of the law’s approach to sadomasochism: It is not, of itself, and I repeat that expression, of itself, in the case of consenting adult persons, contrary to the law of this jurisdiction to engage in activities that could be described as bondage or sexual sadomasochism… Apart from some special circumstances which the law has guarded carefully, and which are not present here, no recognition will be accorded to the consent of an individual to the infliction of significant physical injury upon himself or herself. In my opinion, if the sadomasochistic activity or bondage activity to which a victim consents involves the infliction of any such injury or the reckless acceptance of the risk that it will occur, then the consent of the victim will not be recognized.

The Victorian law of assault demonstrates that violence is something of a legal anomaly. Yet, in the shadows behind the law of assault, explanations of the criminal’s past, explanations of the act in question, classifications of injuries, public policy considerations, the application of defence of consent, the idea of violence continually lurks. Violence functions not as a legal rule or requirement, but rather as a trope, strategically deployed to act as a means of bodily discipline. It is a legal technique of bodily control and surveillance. Through justifications of violence, the law creates rules of forceful bodily ‘right’ and violent ‘wrong,’ and in doing so, configures ‘violent’ and Thus, according to Justice Vincent, sadomasochism is not unlawful per se. Its consensual nature ‘non-violent’ bodily identities. will render it lawful. Consent, however, will not be The Victorian Supreme Court decision in R v Ma- recognized if the act of sadomasochism involves cIntosh [1999] provides a case in point, concerning either the infliction or the reckless acceptance 29

of the risk of significant physical injury. Applying this formulation to the facts, Justice Vincent held that while the general act of sadomasochism engaged in by Rodney and Raymond could not be regarded as unlawful, Raymond did not, and could not, consent to force sufficient to fracture the thyroid cartilage in his neck. Justice Vincent asserted that his finding was not based ‘on any moralistic response to the sexual predilections of those involved in bondage or sadomasochism activities,” but rather the “societal need to deter engagement in unlawful physically violent…acts.’ Here, the idea of violence is not used as a requisite element of assault or manslaughter. Violence acts as a public policy consideration, used to justify the inapplicability of consent to many, if not all, acts of sadomasochism. In R v McIntosh, the trope of violence is deployed in order to create a narrative of violent and therefore unlawful homosexual, sadomasochistic male bodily force. This narrative creates rules and discourses of violent male bodily wrong and configure a violent or deviant masculinity, that of the homosexual sadomasochistic male.

motive or personal animosity…but predominately as an exercise of [sporting] skill.’ In R v Wilson [1996], a husband with the consent of his wife branded his initials onto her buttocks using a hot knife. In holding consent to be applicable, Russell LJ held that ‘consensual activity between a husband and wife, in the privacy of their matrimonial home, is not…normally a proper matter for criminal investigation, let alone criminal prosecution.’ Lashings of Violence In all of these cases, the trope of violence is replaced by different narratives of homosocial mess games, sporting skills and the heterosexual matrimonial home. These narratives act as public policy considerations warranting the application of the defence of consent to these otherwise violent and unlawful acts. A narrative is created of the aggressive and injury-inflicting, but normal and not-violent homosocial, heterosexual male. Out of this narrative emerges rules, norms and discourses of a normal aggressive and violent male, through which, in silence, a violent masculinity is configured. Alex de Large is the unspoken norm of the law.

A very different narrative of consensual and harmful male bodily force emerges in special and largely heterosexual male circumstances, which Vincent J recognises ‘the law has carefully guarded.’ In R v Aitken [1992], consent was held to be applicable to ‘rough and undisciplined mess games.’ In this case, air-force men ignited spirits on a fellow officer, resulting in extreme burns. In justifying the applicability of consent, Cazalet J held that if the victim ‘consented to take part in rough and undisciplined mess games…no assault is proved in respect of any defendant whose participation extended only to taking part such an activity.’

I do not suggest that the law is simply violence, or that violent sadomasochism should be condoned. However, for too long an implicitly violent male has been recognised and accepted by the law of assault. It is time that less focus was placed on what and whose violence the law of assault should control. Instead, there should be recognition of the idea of violence within the law itself and the violent masculinity that the law plays a role in perpetuating. But can the violence of the law, having assisted in the creation of a violent masculinity, then eradicate it? If violence makes violence, can violence also un-make violence?

In the context of boxing, it was held in Pallante v Stadiums Pty Ltd [1976] that such sports are ‘not unlawful…so long as…[they are] engaged in 30 by a contestant as a… port or contest, not from

Or, does this reveal the ultra-violence of law and identity? •

Law in the News

______________________________________________________________ Justice Michael Kirby has enjoyed a long history of hero worship by ANU law students. His frank and engaging mission to ‘humanise’ the law has come as welcome relief to those reading High Court judgments for the first time, and later year students who sometimes need reminding why we are all here in the first place.    Although his departure from the bench may in some ways signal the end of an era, we have been assured that Kirby’s long association with the ANU College of Law will continue. Following his his recent appointment as a Distinguished Visiting Fellow, Justice Kirby will continue to form a large part of many students time at law school. Justice Kirby recently commented that “ANU is one of the great universities of the world. I have always enjoyed my interaction with its staff and students, and not only in the legal discipline. They are bright, forward-looking and have a strong internationalist outlook.” He’s still got that charm! •

Above | Michael Kirby joins the ANU as a distinguished visiting fellow Below | Mick Dodson was named Australian of the Year Professor Mick Dodson’s recent appointment as 2009 Australian of the Year honours a highly respected Indigenous leader and tireless campaigner of human rights. As Director of the ANU’s National Centre for Indigenous Studies, Professor Dodson is one of the law school’s most distinguished academics. His career has rightly challenged the most archaic elements of our legal system. He was the first Indigenous lawyer to be admitted to the Victorian Bar, the first Aboriginal and Torres Strait Islander Social Justice Commissioner for HREOC and participated in drafting the Native Title Act (1993) . The ANU College of Law is honoured to have Professor Dodson on staff, and we are sure he will continue to inspire law students for many years 31 to come. •

The Freehills Summer Clerkship Experience By Mark Smyth

On the first morning of my summer clerkship at Freehills, Sydney, I rolled out of bed half excited for the new experience, and half wondering why I wasn’t spending summer on a beach somewhere. Fortunately, I didn’t have too much time to dwell on this as I hurried my way by ferry and bus into Martin Place to meet my 50 clerk colleagues and start training.

nodding at terms and transactions I didn’t understand, but information sessions, reference guides and mentoring are all available to help you get up to speed. Much of the work I have been given has involved drafting research memos on the State duty implications of various financial transactions, preparing case notes on recent decisions, and assisting with the drafting of transaction documents and letters of advice. I’ve also The large intake of clerks at Freehills was drawn had the opportunity to present case notes to the from a range of universities and backgrounds, section on a recent legal development and to sit including five from ANU. The first few days were in on meetings giving advice to internal clients. devoted to learning about the firm from the senior partnership and training in firm expecta- My next rotation was in the firm’s general comtions, drafting skills and IT. There were lots of mercial litigation team, which was my first prefgroup bonding sessions, including the highly erence and more familiar territory than Banking. embarrassing and demanding annual cross-CBD In Litigation, I worked on a number of current scavenger hunt which felt more like an episode disputes on research tasks and briefs for Counof the Amazing Race. sel, as well as drafting and amending correspondence and court documents. Most Litigation During the Freehills clerkship, and for most oth- clerks had the opportunity to attend meetings er firms, you rotate through two practice groups with Counsel and clients, or have attended the for which you have indicated a preference. The matter being heard in Court. The Solicitors and rotation system is an excellent way to get an in- Partners in both of my rotations were incredibly sight into the kind of work undertaken in the dif- easy-going and supportive, and the firm employs ferent areas of a large commercial firm without an open door policy. the longer-term commitment of an eight month graduate rotation, though you can always come Aside from the practice group rotations, completback. My rotations were in Banking & Finance ing a secondment is an option for summer clerks. Freehills, for example, provides client secondment and Litigation. opportunities and a secondment to the Shopfront As an Arts/Law student, I was apprehen- Youth Legal Centre, which provides free legal assive about my first rotation in Banking and sistance to homeless young people in inner Sydwas unsure how useful my knowledge of ney and is jointly operated by Freehills. All clerks politics and Spanish would be. It has been spend time doing pro bono work of some form, 32 a steep learning curve, with lots of nervous including court visits with the Shopfront team.

But the life of a summer clerk is about much more than research file notes, reviewing documents and client conferences. Summer is the peak period in the social calendar of law firms, with lavish practice group and firm-wide Christmas parties for to enjoy. Freehills also puts on a free staff lunch twice a week and hosts weekly Friday night drinks. With a large number of firms participating in the NSW/ACT summer clerkship program, there are plenty of interfirm clerk events, including weekly drinks, a basketball competition, a trivia night, a cruise and a day at the races. As a native Canberran, all of these events gave me an opportunity to get to know Sydney, meet loads of new people and kept me busy outside of work. Ultimately, a summer clerkship enables both you and the firm to try before you buy. A wellpaid summer stint in a large commercial firm is an efficient and commitment-free way to experience life in the hustle and bustle of a top commercial firm, and chances are you’ll enjoy it.

Because many firms recruit primarily through the clerkship process, it’s also a good way to prove yourself and secure a graduate offer before the stress of final year. The recruitment process kicks off around July each year and is targeted at students in their penultimate year. The LSS and the firms themselves provide plenty of information around that period. If you’ve ever thought of working in a large commercial firm, a clerkship is an enjoyable way to spend your summer, and definitely more productive than sitting on a beach somewhere! •

The Aurora Project By Kari Griffiths

What do you get when you mix administrative law, corporations law, international law, equity and trusts, property law, mining law and contracts law? A confused law student?

crash course from the Handbook for Interns compiled by Aurora. This was soon to change thanks to the patience and dedication of my supervisor and colleagues at Central Desert. The complex nature of the law involved in Native Title is comNo, Native Title! pounded by the need to understand the complex system of traditional law and custom that operThis was my first reaction when I was introduced ates within the Indigenous communities themto Native Title law in the first few days of my in- selves. ternship at Central Desert Native Title Service in Perth. Central Desert was a particularly interesting representative body to work for, as they deal with My internship was organised through the Aurora the Western Desert region of Western Australia, Project in October 2008. I decided to apply for an area that is still very traditional. This is ilthe Aurora internship as I had been volunteer- lustrated by the fact that the first contact with ing throughout the year at the Aboriginal Legal non-Indigenous Australians for many of Central Service (ALS), and had become very interested in Desertâ&#x20AC;&#x2122;s Native Title holders was as late as the the legal issues facing Indigenous people. 1960â&#x20AC;&#x2122;s, and hence the traditional languages are still very widely used. The volunteer coordinator at the ALS had just completed her Aurora internship at Yamatji This became an issue when I was asked to draft Land and Sea Council in Perth and had nothing a power point presentation for a workshop to be but good things to say about it. Her enthusiasm held on country. My task was to distil Corporawas infectious, making me want to broaden my tions law into simple terms so that we could exknowledge of the area and apply for the intern- plain to the Native Title holders what their obliship. The internship promised not only to chal- gations were under the Corporations (Aboriginal lenge me intellectually, but also to put me out- and Torres Strait Islander) Act (CATSI Act). It side my comfort zone as I was told I might have was challenging, as it forced me out of my law the opportunity to go bush for a week to remote student mentality and made me think of how best Indigenous communities in West. to reproduce these rules in plain English without any legal jargon. I went into my internship at Central Desert knowing virtually nothing about Native Ti- I was very privileged to join fellow staff members tle law, apart from the odd titbit of informa- on a trip to remote Western Australia, putting 34 tion gleaned from enthusiastic lecturers and a

all the work I had been doing in the office in Perth into perspective as I saw the practical application of Native Title Law. Out bush I attended a negotiation meeting between an Indigenous negotiation team and a mining company who wanted to mine in that area. Although the agreement was still in the early stages, the resolve of the Indigenous negotiators not to be exploited was clear. Despite this, the problems that the mining companies present with respect to interfering with Indigenous sights of significance is likely to increase, making it more difficult for organizations like Central Desert to get good outcomes for their Native Title claimants. After the negotiation meeting, we travelled to another remote community for an authorisation meeting. This was a very interesting meeting as Central Desert had to confirm with the Native Title claimants exactly who was going to be on the Native Title claim Central Desert would lodge with the Federal Court. As you can imagine, this has the potential to go horribly wrong, as people who were excluded from the claim could complain and force the whole meeting to a stand still, stopping the authorisation process which would in turn prevent the group from obtaining Native Title. Thanks to the careful research done by the Senior Legal Officer, the anthropologist and other people at Central Desert, this did not happen and the authorisation went ahead as planned. Although I was mainly an observer to these proceedings, the experience was still a rewarding one. It was a particular pleasure to spend time in this community as it has very few of the usual problems that typically plague Indigenous communities, such as alcoholism. It was great to see such a cohesive community dedicated to improving the lives of its inhabitants. The drive back to Perth (12 hours in total) was also an experience and my ignorance became obvious once more, this time due to my inability to sing along to the hits of the 1980s and early 1990s!

Once back in the office, I continued to work on a variety of different tasks, from drafting affidavits and other court documents to identifying holding and subsidiary mining companies so that Central Desert would know who they were negotiating with and which mining company held which mining tenement in different areas. In addition to drafting court documents, I also drafted the rules for a Prescribed Body Corporate (PBC) that was being established. When a Native Title claimant group obtains Native Title, they must form a PBC to carry out the business functions of the Native Title group. The process involved working with examples from previous PBC rules, templates issued by the Office of the Registrar of Indigenous Corporations and instructions gathered by the Central Desert anthropologists from the Native Title holders themselves. My Aurora internship opened my eyes, not only to an area of law that I had little to no experience in, but also to a group of individuals who were extremely dedicated to their work. It was fantastic to work with people who had such a strong connection with the people they were representing and the work they were doing. When I started my internship, I was under the impression that most Native Title Representative Bodies find it very difficult to recruit and retain staff. Although Central Desert does face this problem, the majority of people working there had been there for many years and had no intention of leaving. So, despite my inability to tolerate plus 40 degree weather and my sad knowledge of 1980â&#x20AC;&#x2122;s and 1990â&#x20AC;&#x2122;s music, the internship was an excellent experience and one that I would highly recommend to anyone who wants to expand their horizons, learn more about this diverse area of law or just do something different. â&#x20AC;˘

Breaking Down Boundaries: Law For Social Justice By Sue-Lin Wong I came away from finishing my first year of law with a very different outlook than the one I had started out with. In Lawyers’ Justice and Ethics, we studied the unusually high rates of depression and suicide amongst lawyers compared with other professions, and how this could be partially attributed to the emphasis on clocking up the hours in large, corporate law firms.

sceptical about the Personal Development and Leadership workshop because I immediately flashbacked to high school bonding activities. However, I was pleasantly surprised when we all participated in what was the most interesting and useful teamwork exercise I have ever been a part of. The emphasis of the exercises was on how much more can be achieved through cooperation and collaboration, rather than a dog-eatAnd so, it was somewhat of a relief going to the dog approach. inaugural Breaking Down Boundaries: Law for Social Justice conference held at Sydney Univer- We were lucky enough for both Julian Burnside sity at the beginning of the summer holidays. QC and the Hon Greg James QC to be the keynote speakers of the conference. Mr Burnside Three of us from the LSS’ Social Justice portfolio was very generous with his time and spent the – Sam Stapleton, Sophie Roden and I, along with whole of Saturday night at the conference chatother interested students from both the ANU ting to us, imparting gems of wisdom about legal and universities across Australia, participated in and non-legal issues. He spoke of how he could the weekend residential program where we were not have done all that he did for refugees if he inspired to use our study of law for social justice had not worked in the big end of town. and positive change within our communities. He told us to not just dismiss working for a corThe weekend consisted of a series of workshops porate law firm because it’s seen as selling out, and forums, including a criminal law forum, in- but instead to learn all you can from an expeternational law forum, indigenous forum and rience like that. Likewise, Mr James really enperceptions of the legal profession forum. We gaged with us by spending time answering our heard from expert panels consisting of leaders in questions and finding out what we wanted to do not only the field of law, but also academia, med- with the law. He reminded us about how fun law icine, foreign policy, media and youth affairs. is, and that the key is to find our passion within it. For example, being a sports fanatic, he manThere was an Indigenous Australia work- aged to combine law and sport by heading the shop which explored what it means to be Rugby League Tribunal. a part of a Stolen Generation through interactive activities and reflection. I was The conference was a great opportunity to 36 meet like-minded law students from across

Australia. There were numerous social functions including a trivia night, film screenings and a garden party. We came away from the conference not only with a couple more friends on Facebook, but also ideas for the LSS’ social justice portfolio here at the ANU. We are hoping to kick off the year with a screening of Invisible Children, a documentary about child soldiers in Uganda. This should take place in the first couple of weeks of the first semester, so keep an eye out for that. While at the conference, we attended an alternative careers fair with representatives from a range of organizations, such as the Prisoners Union, Legal Publishing companies and Australian Youth Ambassadors for Development, an initiative run by the Australian Government and AusAid. We are collating all the information we gained into a ‘Law for Social Justice’ internship guide which will be available in electronic form on the LSS website by the second term. We came away from the conference motivated by what we heard and inspired by a stronger belief that we will be part of a generation of progressive young lawyers. I would encourage anyone with an interest to attend the conference next year. Whether you are set on becoming a high-flying lawyer or announced to everyone in your first day of Foundies that you will never, ever become a lawyer, you will undoubtedly learn new things from a conference like Breaking Down Boundaries. •

From the LSS

______________________________________________________________ In between watching Boston Legal and reading Agatha Christie’s finest works, the 2009 ANU Law Students’ Society Committee has worked hard over the holidays to provide you with a memorable O Week and a stunning 2009. In planning the year ahead, the executive even managed to visit a Chinese clairvoyant in the shady suburbs of Sydney. As the year of the Ox, our horoscope for 2009 was far from ideal: Steady, plain and quiet. I hope that we can dishonor our cryptic clairvoyant’s claim and provide you with a loud, exciting and entertaining 2009. Far from being steady, plain and quiet, the LSS has been given a solid makeover with a new website and a slick logo. On matters educational, summer courses and Semester One Means of Assessment have been reviewed, and the First Year Guide looks sharp. The social justice portfolio is more than eager, already attending the Breaking Down Boundaries: Law for Social Justice conference and preparing an in-depth internships guide. Competitions have never been so organised, with an exhaustive competitions guide and an unprecedented range of events to be run throughout the year. With the release of the Careers Guide and planning already under way for the 2009 Law Careers Week, the careers portfolio is looking very employable. The socialites of the events portfolio have been filling the year’s calendar with an impressive line up of social events: the annual pre-toga party kicking off the year, followed by the legendary First Year Cruise. Last, but likely to save you the most, the LS card has secured some fantastic discounts for LSS members at the hottest cafes and stores on and off campus, including Cox Kelly’s, Transit Bar, Enigma Style Hairdressing, Debacle and VanillaBean Café. The LSS team of 2009 has already displayed their skills over the break and I am confident that the year ahead will be a success. I would like to thank the 2009 committee for all the hard work they have put in over the holidays. We are also very fortunate in having Maiy Azize, Annabelle Craft and Haydn Flack on the LSS team for 2009 as very capable Peppercorn editors who have been working diligently on this publication throughout the holidays. The ANU LSS is here to serve you, so please make the most of all our services, events, forums and publications. Whether you are keen to have a dance at Jazz at Dusk or are looking to take out the Mooting cup, we hope we can provide you with a year which makes your wildest dreams come true. Check out our website: www.law.anu.edu.au/ lss/ and read our E-briefs for updates throughout the year. As you gear up for O week, we encourage you dress in your finest toga and hit the College of Law to have a few drinks at the Pre-Toga party this Wednesday night. Steady, plain and quiet? I don’t think so. 38

Paddy Mayoh 2009 LSS President

______________________________________________________________ Hello, and welcome to the ANU Law School for 2009! My name is Sarah and I will be your Careers VP for 2009. The Careers Portfolio this year consists of Alex Naughton as Director of Careers Services and Tim Cooper as Careers Services Officer. We also have Thomas Burke as the Director of Community Legal Services and Alexandra Collins as the Community Legal Services Officer. Our primary role is to act as a point of contact between you and the myriad of prospective employers, both Australia and abroad. To facilitate this we will be holding numerous information events and releasing a number of publications throughout the year. First up is the Annual Law Careers Fair in March. This is always a highly informative day and a great chance to stock up on freebies! This is followed by graduate and clerkship evenings and the careers cocktails night. We also realise that not everyone at law school intends to be a corporate lawyer, and with this in mind we will be holding numerous events with representatives from the public and social justice sectors. Make sure you pick up a copy of the 2009 Careers Guide, which is packed with a wealth of information about career paths and useful tips. A big thank you to the outgoing Careers VP Shiara who worked tirelessly on the Careers Guide over the summer break. This will be supplemented by our Clerkship Guide and Social Justice Careers Guides later in the year. Finally, this year we intend to hold numerous workshops to assist you in writing cover letters, drafting resumes and attending interviews. We are also looking to provide more information on interstate and overseas careers opportunities. If you have any career related inquires, please do not hesitate to contact me at lsscareers@anu.edu.au. I look forward to meeting you all over the course of the year! Sarah Lynch Careers Vice President ______________________________________________________________ Administration is not the world’s most exciting portfolio and, except for vague responsibility for this illustrious publication’s tendency to offend, many of you will remain totally unaware of its role except for the wonder that is your LSS E-Brief. I’ll be sending that to you like clockwork and it will contain all kinds of useful information about what’s going on around the Law School and other really, truly exciting opportunities. I recommend reading it for two reasons. Firstly, it’s useful and could lead you to feel more engaged with life around campus. Secondly, I will feel like I’m sending messages to all of my friends and that you all care about the secrets I have to share with you. So please, make my life worthwhile and read the E-Brief. 39

I’m also a CHAT mentor and one of your Faculty Representatives on ANUSA, so some of you will be seeing a lot of me, and I sincerely hope that’s a good thing. If you discover an Administrative issue or would just like more friends on Facebook, drop by the LSS Office on the far side of the quad, I’ll almost always be there and would love to chat. Sam Thorpe Administration Vice President ______________________________________________________________ My name is Sagar. Actually I lied, my real name is Vithiyasagar, but shortening it opens itself up to nicknames such as Sugar, Cigar and Sanga. I am the Finance VP for the LSS in 2009, which means that I am in charge of the funds of the society. My job is to manage the accounts and ensure that there are enough funds for the LSS to provide you with the parties, publications and other services that make your time at the Law School so much easier. I also play an important role in liaising with sponsors, so we continue to receive their sponsorship and they continue to receive valuable returns on their investment. This year is shaping up as a very exciting year for the LSS and its members, especially in terms of the Finance Portfolio. Already the Sponsorship Committee have toiled hard to bring you superb discounts on your LS membership card at various businesses on and off-campus, including Transit Bar, Cox Kelly’s, Enigma Style Hairdressing, Debacle and Vanillabean Café. A big thanks to Kath and Dan for all their hard work in making sure all LSS members do not have to pay as much for their alcohol, coffee, pizzas and their hair. Despite the fears of a nearing recession, the LSS is looking to generate even more income through sponsorship and other avenues to provide you with an even greater amount services for your benefit and, most importantly, to ensure that we throw the best parties in town! Sagar Sritharan Finance Vice President

News in Brief

______________________________________________________________ Peru’s Constitutional Tribunal has ruled that employees cannot be fired for being drunk at work. The municipality of Chorrillos was ordered to re-employ Pablo Cayo Mendoza because, despite being drunk, Mr Cayo could speak, write and didn’t hurt anyone. • The Nevada Commission on Judicial Discipline have permanently removed Judge Elizabeth Halverson from the bench. Halverson was found guilty of sleeping during hearings, making improper contact with jurors, mistreating staff and hiring two unlicensed bodyguards to replace the courtroom bailiff. She referred to her staff as ‘bitches’ and ‘dumb fucks’, and required them to massage her feet, neck and shoulders. Halverson’s lawyer has conceded ‘she’s not perfect’. • Papua New Guinea’s Constitutional Review and Law Reform Commission will draft tougher laws to combat the ongoing problem of sorcery-related murders across the country. Puri Puri, or sorcery, is a traditional belief used most commonly in remote highland areas. Police say at least 50 deaths last year can be attributed to sorcery, including the murder of a young woman who was stripped naked, bound, gagged and burnt alive. • Following the successes of Keating! and Shane Warne: The Musical, an Austrian theatre company is taking Josef Fritzl to the stage. Fritzl, who will go on trial in March, allegedly held his daughter captive for 24 years and fathered her seven children. Fritzl’s Bed and Breakfast will open on February 23 and is described by producer Hubsi Kramnar as a ‘cellar soap opera’. • A Californian man has been arrested for arranging to sell his 14-yearold daughter in exchange for $16,000, 100 crates of beer and several trays of meat. The 36-year-old man was arrested after he contacted police to report that the buyer had failed to hand over the cash, beer and steak. • Brenton Erhardt has been fined $2,000 and sentenced to two months prison after pleading guilty to dangerous driving before Darwin Magistrates Court. Mr Erhardt was pulled over by Northern Territory police after filming himself masturbating while travelling at 147km/hr down the Sturt Highway. Some lessons just have to be learnt the hard way. • 41

Nigerian police are holding a goat on suspicion of attempted armed robbery. The goat was placed under citizens’ arrest after witnesses claimed a man had used black magic to transform himself after trying to steal a Mazda 323. The goat is refusing to bleat. Investigations continue. • 84-year-old Luba Relic has been banned from driving for 991 years. Ms Relic recently appeared before Manly Court where a magistrate added a year to her already-lengthy term for negligent driving, driving without a license and failing to give particulars. She will be eligible to drive in 3000. • Don’t be expecting an Australian version of the campaign by British atheists anytime soon. The British Humanist Association successfully advertised on UK busses with slogans such as There’s Probably No God. Now Stop Worrying and Enjoy Your Life. Australia’s largest outdoor advertising company has cited no reasons for rejecting a similar campaign by the Atheist Foundation of Australia. The matter is being taken to the Tasmanian Anti-Discrimination Board. • Doreen Giuliano, 46, reportedly hatched an elaborate plot free her son who is currently serving 25-years for murder. Giuliano, who claims her son is innocent, disguised herself, adopted a new name and for the next year attempted to seduce Jason Allo, a juror in her son’s trial. Over the course of a three-month relationship, Giuliano recorded conversations where Allo revealed he had known several of the witnesses and admitted guiding other jurors toward reaching a guilty verdict. •

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School of Music, Level 5 E: biginelli@optusnet.com.au T: 6125 5848

Aparna Rao, a recent first class Honours law graduate and ANU University Medal holder, has been awarded the Sir Robert Menzies Memorial Scholarship in Law. Aparna will undertake the degrees of BCL and MPhil at Oxford University commencing October 2009. Aparna was one of two candidates selected from 40 applicants for the award. • Alice Edwards has been awarded the Audre Rapoport Prize for Scholarship on the Human Rights of Women for her paper entitled Violence against Women as Sex Discrimination: Evaluating the Policy and Practice of the UN Human Rights Treaty Bodies. The article arose from Alice’s PhD research at the ANU College of Law. • The ANU recently competed in the Phillip C. Jessup International Mooting Competition, coming away first for Best Applicant Memorial, runner-up Best Overall Memorial and fifth in the oral rounds of the competition. The team consisted of David Bomball, Annabelle Craft, Will Fitzgibbon, Joshua Neoh and Ilona Tan. They were coached by Kevin Boreham. •

Upcoming Events

______________________________________________________________ Introduction to the Human Rights Act Human Rights Commission The Human Rights Act 2004 guarantees key civil and political rights for people in the ACT. This workshop is aimed at providing participants with a general understanding of the purpose and operation of the Human Rights Act. 9:30am-1pm Thursday 5 March 2009 For more information, phone (02) 6207 1034 The Human Rights Enterprise in Australia and Internationally Peter Bailey, ANU College of Law To be launched by The Hon Michael Kirby AC CMG. 5pm-6pm Tuesday 10 March 2009 For more information, phone (02) 6125 1096 Swimming to Cambodia: Justice and Ritual in Human Rights After Conflict Professor Hilary Charlesworth, ANU College of Law The Annual Kirby lecture on international law is an initiative of the Centre for International & Public Law, established to recognise Michael Kirby AC CMG’s long passion and service to international law. 6pm Onwards Thursday 19 March 2009 For more information, phone (02) 6125 1096

In This Issue: Opinion

Do We Need A Bill Of Rights? Senator George Brandis SC

Our Rights Are Not Protected: Why We Need a Bill of Rights NSW Council for Civil Liberties

Features

Time For A Bill Of Rights Julian Burnside AO QC

Who Cares? Managing Flexibility In The Workplace Human Rights and Equal Opportunity Commission

Ultra-Violence: Masculinity, Law and Sadomasochism Anthony Hall

Articles and Letters

A Reflection On Justice Virginia Bell Simon Rice

Animals And The Law Ven. Alex Bruce

Summer Clerkship Experience Mark Smyth

The Aurora Project Kari Griffiths

Breaking Down Boundaries: Law For Social Justice Sue-Lin Wong