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Peppercorn | Issue 1 | March 2010 ANU Law Students’ Society | Fellows Road, ANU College of Law Editors Pete Anstee | Mike McGuire | Helen Zhang Advertising ANU Law Students’ Society | lss@anu.edu.au Cover Original photograph from Michael Coper, edited by Peppercorn eds 2010 All photos and artworks liscenced under Creative Commons unless otherwise indicated
Contents Page
From the Editors | 04 My Inglorious Career with Student Publications | 05 The Hon Michael Kirby AC CMG
Letter from the Dean: Why are you at Law School? | 08 Professor Michael Coper
LSS President’s Report | 11 Robert Anderson
From the LSS Executive 2010 | 12 On the National Law Reform Agenda | 16 Law Council of Australia
Laws Are No Match for Refugees | 18 Graham Macafee
Reform of the Law School | 20 Benjamin Moody and Melanie Poole
The State of the Profession | 24 John Corcoran
National Human Rights Consultation: Report Handed Down | 28 Father Frank Brennan
Changes to the Higher Education Scheme: The Impact on Law Students | 30 Australian Law Students Association
The Human Rights of International Students | 32 Australian Human Rights Commission
CHAT | 34 Heather Roberts and Kath Hall
Clerkship at the Attorney General’s Department | 35 Isabelle Reinecke
SWinG: ANU Geneva Program | 36 SWinGers 2010
TransAsia: Clerking at Chinese Law Firm | 38 Patrick Mayoh
News In Brief | 42
Peppercorn March 2010
Irreverent, stimulating and provocative — Welcome to Peppercorn for 2010. Treating Michael Kirby’s greeting as a mandate, we want to promote Peppercorn’s position as Australia’s leading law student magazine. Peppercorn is a strange title for a student publication. In legalese, the term peppercorn is a metaphor for a very small payment or a nominal consideration used to satisfy the requirements for the creation of a legal contract. In layman’s English, a peppercorn is the dried berry of a climbing vine. At the ANU, it is none of the above. It is a law student magazine. Edited by students, for students. We have ambitious plans for Peppercorn this year. We hope to establish a ‘publication exchange’ with the International Alliance of Research Universities (IARU) and leading international law schools, develop a website for the publication, and increase the number of issues produced and circulated at the ANU and other Australian law schools. Above all, we want to continue what Peppercorn does best: provide an informal voice for those attending and interested in the ANU law school. Along with our commitment as editors to provide thought-provoking and relevant content in each issue, we strongly encourage all interested students to submit articles. We welcome comments and criticisms on all areas of the law. As a new educational initiative, we encourage students to submit pieces of outstanding (and interesting) academic work, such as case-notes or essays. Your hard work deserves recognition, and it will serve as an example for others of what your lecturers want. In this first edition, there is a strong focus on the reform of our law school and the legal profession. We must thank our predecessors, who sourced and compiled some of the contributions in this edition. Congratulations Maiy, Annabelle and Haydn on a fantastic job in 2009. Best of luck for the semester! Pete Anstee, Mike McGuire and Helen Zhang 2010 Peppercorn Editors
My Inglorious Career With Student Publications By The Hon. Michael Kirby AC CMG
My most notable involvement in student publications was, and still is, a source of great shame to me. Back in the year 1962, I was elected for my first term as President of the Sydney University Students’ Representative Council. Ponder on this next time you see a student politician around campus. That jumped-up, self-important troublemaker has a high chance of eventually becoming a Justice of the High Court, Prime Minister or Governor-General. It is enough to make one shudder and to need a good lie down. A dispute broke out in 1962 between with the Students’ Council at Sydney University and the editors of the student journal, Honi Soit. At the time, the editors were Peter Grose and Ritchie Walsh. The latter is still involved in publications, having become a leading Australian publisher in the famous house of Allen & Unwin. I cannot quite remember what the 1962 dispute was originally about. But the long and short of it was that it involved an issue of censorship. The SRC was divided. Eventually, the majority sided with the censors. I dimly recall that I took a rather formalistic line to the complaints about the contents of Honi Soit, emanating from the University administration. Formalism is often a problem with lawyers. The SRC was the publisher and funder of the journal. Accordingly, so I said, it had a right to impose its standards. When the editors strayed, the SRC could impose its will. Impose it did.
Obviously, I did not have formulating in my little brain at the time the great constitutional principle later stated by the High Court of Australia in Lange v ABC. Nor was there much rhetoric about free speech; free expression; or the free press. There was precious little insistence upon the special need for freedom of speech in a university. My rather orthodox and conservative line won the support of the Council. The editors of Honi Soit were sacked. It was a grim day for free expression in student publications. The shame of it all. Later, the Sydney SRC got cold feet and changed its mind. The editors of Honi Soit were hastily reinstated. But, as I remember it, they immediately resigned in protest against the way in which they had been dealt with by the SRC. Looking back, their rebuke was probably well-deserved. It is not a glorious moment in my rise to power in student ranks. I look back on it now with much embarrassment. So it’s better to get that off my chest. One consequence of the debacle involving Grose and Walsh was that Laurie Oakes was appointed editor of Honi Soit. Thus began his long career in Australian media. Amazing where people start. According to the history books, Laurie Oakes later employed Kevin Rudd, when he was a mere student at the ANU. He paid our now Prime Minister to do odd jobs around the house. No doubt, during wide-eyed questions by Kevin Rudd, the media guru told him about his triumphs in Honi Soit. 5
Actually, he probably then launched Kevin Rudd’s still more glorious career. In that way, I feel I can take credit for the rise and rise of our Prime Minister. If I had not sacked the editors of Honi Soit, Laurie Oakes would not have risen to the top. He would not have employed Kevin Rudd. And the rest would not be history.
It should contain short articles, mainly written by students, giving a fresh and punchy perspective about the law, legal studies, latest judicial decisions and the future of the profession. It should, in short, be an irreverent, stimulating, provocative publication. We can leave the deep learning and footnotes to the formal law reviews.
The short point is that students who take part in the representative associations during their university years tend to be the pushy types you get on in life. So get with it. Make the most of your university experience. And never let some conservative student politician censor you or suppress legitimate free expression on a university campus. If you cannot have, and express, bold and unwelcome ideas there, where can you do so?
Above all, student publications should challenge orthodoxies in society. Such challenges are especially needed in law faculties. Surveys of law students in Australia show that they are still overwhelmingly drawn from private school education, elite suburbs, and privileged backgrounds. The type of person who chooses to study law is typically one who likes life to be ordered, predictable and regulated. Obviously, there is a place for such people in the law. But there must also be a place for the questioners, the stirrers and the dissenters. It is by the dialogue between the forces of change and of conservation that progress is made in the law. And the best place to start is in law school. A very good place for the young stirrer is in student publications.
I am glad to see that in 2010, the ANU Law Students’ Society has ambitious plans for Peppercorn. The Society hopes to establish a publication exchange with the International Alliance of Research Universities and with leading international law schools. This exchange will move beyond the printed page. In ways that we could not imagined in my university days, an interactive website will be created for this publication. It will result in an increase in the number of issues produced and circulated at the ANU and, through cyberspace, to other Australian and overseas law schools. The one thing that Peppercorn should not do is to try to become another university law review. We can leave that activity to the Federal Law Review and the other university law reviews in Australia. They are outstanding publications, providing constant stimulation, analysis, criticism and new ideas for the judiciary and legal profession of Australia. I am a strong supporter of law reviews. One of my great joys during my High Court service was to see the new editions come into the library of the High Court, with their vast range of stimulating articles and commentary. Now, I must struggle with the internet to get the same range of stimulation. But a student publication should be more informal. It should contain short newsy items. It should include a few photos, especially photos of the President and Executive of the students’ society! 6
If my life is any guide, an engagement in student activities at a young age sets the ambitious tyro on a course that could end up virtually anywhere. To all participants in Peppercorn, and to all students at the ANU College of Law, I send greetings and this message of encouragement!
Distinguished Visiting Fellow, ANU Justice of the High Court of Australia 1996-2009
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Why Are You At Law School? Letter from the Dean By Professor Michael Coper Why have you come to law school? How can we add value to your quest to achieve your aspirations? These two questions have been much on my mind. They have been on my mind both in their own right, and because of their interconnection. There are two polar opposites in the reasons why you might have come to law school. On the one hand, you might have detected a possible career that would give you high status, material wealth, and a high-flying lifestyle. On the other hand, you might have had in mind that you could use your legal knowledge and your legal skills to right wrongs, help the disadvantaged, and promote world peace. Let me leave these contrasting aspirations hanging, and move to my second question: what can we do to help? It would not surprise me if your perception of your predominant task at law school was the acquisition of legal knowledge and legal skills. So it is. Whatever you do with your knowledge and skills, you must first of all acquire them. We are here to help you acquire them. And it is such a challenging and overwhelming task that you would be forgiven for thinking that that is all there is to law school. After all, the curriculum is organized almost entirely according to substantive subject matter areas of the law, with the exception of 8
some of the introductory (Foundations of Australian Law) and conclusory (Legal Theory) courses and a few others in between. Concepts of legal process, legal values, and law and society, must be gleaned largely within the interstices of the substance of the law. This is no bad thing. It gives abstract meanderings a concrete context, and it fosters real insight. But it may also sometimes obscure the broader purposes of the law, the potential locked up in the idea of being a lawyer, and the role you can play as an individual lawyer. Thus, there are broader themes that permeate the curriculum, some of long standing and some of more recent origin, some obvious and some not so obvious. First, you cannot fail to have noticed our pride at the ANU College of Law in our distinct ethos of sensitivity to law reform and social justice. This plays out in a myriad of ways, and is still under development. It is playing out increasingly in the curriculum — not only in dedicated electives such as Law Reform, but more pervasively. We want you to know not only what the law is, how it has developed, and what it might become, but also whether it is appropriate to serve the needs of a humane, tolerant and caring society. We want you to have the skills not only to ascertain and apply the law, but also to have input into adapting and reshaping it to create the kind of society we want. The challenge is how to combine this ethos with the acquisition of core knowledge and skills.
That core knowledge and skill base is an essential platform for the effective pursuit of broader purposes. Yet mastery of it — mastery of the lawyer’s ‘craft’ — seems to have an uncanny knack of becoming an end in itself. For some, it is so arduous that there is no energy left for broader speculation. For others, it is so entrancing that the elegance of legal reasoning casts a paralysing spell over its exponents. For others again, the boundaries of the law as a closed and known system of rules create a comfort zone and a safe haven from the swirling contentiousness of competing values and societal goals. Conversely, the unleashing of passion about law reform and social justice can foster an impatience with, even intolerance for, the analytical rigour required for effective lawyering. In spite of — or perhaps because of — this challenge, we are here to help you internalise, as part of becoming a complete lawyer, the important ethos of law reform and social justice. The law is not an end in itself. Nor is it in a state of perfection. You can do much throughout your careers to improve the system and make it work better. Exactly how you might do that is a large subject I must leave to another occasion. The second broad theme that is slowly transforming the curriculum, at ANU and elsewhere, is the internationalisation of areas of law that were once thought of as predominantly local. This too is a large subject, also best left to another occasion, but I should just say that it fits well with our long standing orientation and special strength at the ANU College of Law. I know that many of you come to ANU specifically because of your interest in pursuing a career on the international stage. This correlates well with a desire to use the law to serve the public interest. We obviously encourage that, and do our best to promote opportunities for you, through internships, exchanges, international competitions, and the like. Thirdly, we can help you achieve your aspirations at law school by paying more attention to your general well-being — something that is not only a good end in itself, but is also correlated with academic performance. Many of you will know that recent studies report higher levels of depression amongst law students and lawyers than amongst
comparable groups in the community. We are developing a wide range of responses to this phenomenon, and I applaud in particular all those involved in establishing and developing our CHAT mentoring scheme. But I also think that the phenomenon is very closely linked to the importance of not just acquiring legal competence, but of also internalizing the ethos of harnessing that competence to improve the operation of the law and the legal system. I have no doubt that, if you can see and work towards a broader purpose in what you do in life, your mental state will be correspondingly healthier. So why have you come to law school? To serve your own personal ends, or to serve the public good? To make a personal fortune, or to make the world a better place? To be a narcissist, or an altruist? There are complex and deeply contentious moral, philosophical, psychological and economic perspectives on this simple contrast, and I do not want to be simplistic about it. The great Oliver Wendell Holmes recognized over a century ago that personal material ambition was neither unacceptable on its own terms nor inconsistent with a broader ambition to serve the public good. But we proceed at the ANU College of Law in the belief that personal material ambition, and the acquisition of legal competence in order to further that ambition, is not enough by itself. There has to be something more, rooted in deep values and designed to serve the public good. We are constantly trying to articulate and give content to what that something more is. Our major review of the LLB curriculum this year will address it. We constantly address it individually and try to work out our own, often contingent, answers. I invite you all to think about it as well, and start to visualize how it might play out, both in your own law school experience and beyond. I have touched on these themes elsewhere — indeed, I always seem to return to them — but if your imagination is ignited by the idealism of my ambitions for you, you can find some easily accessible elaborations at 9
http://law.anu.edu.au/deansMessage.asp, http://www.academyoflaw.org.au/events/mcoper.pdf, http://www.ialsnet.org/meetings/role/ papers/CoperMichael(Australia).pdf, and http:// www.toledolawreview.org/pdf/Coper.pdf. Professor Michael Coper Dean and Robert Garran Professor of Law ANU College of Law Valentine’s Day 2010
Dean of our Law School, hard at work.
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LSS President’s Report By Robert Anderson
Dear Peppercorn Readers, Welcome to the ANU for 2010!!! It’s shaping up to be a very exciting year, and at the LSS we’ve been working hard over the summer to ensure that 2010 an exciting year for you all. This year, the LSS has got a calendar packed full of fun times: All New Social Events: In 2010, the LSS will be bringing you the best socials on Campus. We’ll be reinvigorating ANU’s classiest party, the annual ANU Law Ball, with a fabulous theme and all-new format. We’ll also be bringing you a new event, Jazz @ the High Court, which will feature a fabulous band, elegant canapés and cocktails that will blow you away.
like the Clerkship Information Evening and careers workshops like CV Writing Skills, and introducing more opportunities for you to get on a first-name-basis with the people who’ll be reading your applications. Don’t miss the Careers Guide Launch Event in Week 3. Social Justice: Well underway are plans for a textbook loan scheme for students struggling to make ends meet, and a regional volunteer placement scheme, which will see ANU students sent to work in community legal centres in regional areas around the country. Make sure you get along to the annual Social Justice Dinner, one of our most popular events, last year featuring Attorney-General Robert McClelland.
Education Initiatives: At the top of our list of priorities for this year will be a strong outcome for students from the College of Laws’ LLB curriculum review. We’ve been promised a seat at the table, and are looking forward to engaging with the College of Law. If you’d like to have your say on the things you’d like changed, send an email to lsseducation@anu.edu.au, or drop in to our office and have a chat. Also being undertaken this year will be a massive revamp of our Past Exam Answers Guide, and a Pre-Exam Tutorial series, to help you sail through exam time.
Remember, the LSS is here to serve students, and we encourage you to make the most of our publications, services, competitions and social events. There’s something for everyone on offer this year, from wild socials to edgy competitions and all the essentials to get you through exams. Check out our shiny new website at http://law.anu.edu.au/ lss for all the details of our upcoming events, or to get in touch with us if there’s something you’d like to contact us about.
LSS Careers: Putting feet in a door near you The Careers portfolio has got an incredible line-up for 2010. We’re bringing back some old favourites,
Rob Andersen President ANU Law Students’ Society 11
Report from the LSS Executive
Social Jusice VP: Nakul Legha
Administration VP: David Rowe
Social Justice is one of the more intimate portfolios, comprising the salubrious Shaun Wykes (Equity Officer), the sensational Simon Dickson (Director of Research), and myself, with a first name that stubbornly refuses to alliterate with the letter s. Unlike our less successful imitation, Wolfmother, this power trio will attempt to invigorate our genre with a dash of originality and a hint of entertainment. Actually, maybe we will just focus on social justice initiatives.
G’day and welcome (back) to our fine College of Law in 2010. My name is Dave Rowe, and I’m in my fourth year of undergraduate toil at the Law School. I’m returning this February from a six month exchange in the frozen wilds of northwestern Germany, I am really looking forward to taking up the position of LSS Admin VP. And, frankly, sunlight.
We want the LSS to be a tangible avenue for people like you who want to be involved in the ‘idea’ of social justice and in the wider community but aren’t sure what exactly where to start. We will be working to establish networks with local and regional legal aid organisations and releasing a guide with all the details and contact info on how best to get involved in internships and volunteer legal work. We intend to hold forums with distinguished speakers on issues of contention, providing you with an avenue of discussion and debate. We will also be hard at work trying to set up a Textbook Loan Scheme for financially disadvantaged students. The blockbuster events of yesteryear will be back bigger than ever. The traditional Social Justice Dinner in Term 2 will give you the opportunity to hear from a prominent guest speaker involved in Social Justice and the Women in Law Brunch promises, as always, to be a great success. 12
Admin is a shadowy and mysterious portfolio. Most of my activities will keep me happily out of your view. I will, however, be regularly blessing your inbox with the LSS E-Brief. This esteemed electronic publication will keep you abreast of important goings-on at the College of Law and beyond. More fun than Fox News; more erudite than the Economist; more circulation than the Canberra Times. Read it. We have an all-star team on the LSS this year, with a whole host of brilliant ideas; I’d encourage you to dive into all the opportunities that are on offer. 2010 looks very promising. See you out there. Events VP: Ali French Hello! My name is Ali French and I am the Events VP for 2010. We have a great team this year with Katelyn Ewart as the Director of Social Events, Vina Oktavia as the Social Events Officer and AJ Oldfield has the all-important-task of keeping hungry students happy as the BBQ Officer.
Competitions will be outstanding in 2010 with Gary Khoo as the Director of Competitions, Pei Chow as the Competitions Coordinator and Dunja Cvjeticanin as the Competitions Officer. Together, the team for 2010 will work hard to ensure that you get have some fun amongst all the studying during your time at university. The LSS events typically draw crowds from all over campus and are a great opportunity to meet fellow ANU students! We already have some fabulous events lined up for the first term - the fun begins before classes even start with the LSS hosting the annual PreToga Drinks during O week. Later in March you will have the chance to experience the splendor that is Lake Burley Griffin on the LSS Law Cruise. And then there is the big one…Law Ball. The events team is already working hard to bring you the best and biggest Law Ball ever in August! There will also be an array of competition events that you can participate in to flesh out your practical legal skills! Keep your eyes peeled in the upcoming weeks for the competitions BBQ where you can learn about the events you will be able to enroll in. Lastly, make sure you join the LSS facebook group and sign up for our LSS e-briefs to ensure that you are in the know about upcoming events! If you have any inquiries, suggestions or comments about LSS events for 2010 please feel free to contact me at lsssocialevents@anu.edu.au Careers VP: Kim Nguyen My name is Kim and I was assigned the seemingly impossible task of following in last year’s Careers VP’s footsteps to provide you with a year jam-packed full of careers events as good as 2009. Thankfully, with the passing of the GFC and some fantastically fresh ideas, it looks achievable! The Director of Careers position is yet to be filled and elections will be held early in Semester One. Our role is to put you in contact with prospective employers by holding events and providing you with useful publications. Our line up of careers events is going to be kicked off with a combined Legal Workshop and LSS Careers Options Seminar.
This is followed by the ANU Careers Fair, where students will have the opportunity to meet with representatives from private and public organisation (legal and non-legal). We will also be holding a Clerkship Information Night in July where students will have the opportunity to meet with clerks and graduates from prospective employers. In terms of publications, the 2010 Careers Guide has been carefully prepared by last year’s very capable Careers VP, and is an essential guide for those looking for information on first-hand career experiences and application tips. We will be holding a Careers Guide Launch Event in early March. The Clerkship Guide and the International Careers Guide, will follow. I will be on hand to answer any career related inquiries you may have. Contact me at lsscareers@anu.edu.au. Finance VP: Jimmy Bai Finance is a portfolio that’s about as fun as staring at a balance sheet. Luckily, that’s how I get my kicks, so hello; my name’s Jimmy and I’ll be the Finance VP in 2010. I’m in charge of managing the LSS’s funds and making sure there’s enough money for all the great events we have lined up in the coming year! To make sure you get your fill of the latest publications, parties, and revision tutes, I’ll be keeping both eyes squarely on the bottom line, and liaising with our sponsors. By ensuring that their contributions are used effectively for our members, we can continue our invaluable partnership with them, and help you even beyond Law School! I can promise that you’ll have a fantastic year with the LSS. With help from our esteemed Sponsorship Officer, Dave, we’re bringing back the Law Society Card initiative in a big way, bringing you great discounts on coffee, clothes, kebabs, travel and much more! This exclusive membership card is sure to help members save with its special deals to numerous businesses on and off campus! And that’s not all: there’ll be parties, workshops and barbeques to keep your spirits up all year! So as we leap back into shape after the GFC, the LSS will be there to make 2010 a great year for you to be studying at ANU! 13
Meet the LSS Executive of 2010...
Social Jusice VP: Nakul Legha LSS President: Robert Anderson
Administration VP: David Rowe
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Careers VP: Kim Nguyen
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On the National Law Reform Agenda By the Law Council of Australia
Last year, the Council of Australian Governments (COAG) agreed that further work needs to be done to nationalise regulation of the legal profession in Australia. Although improvements have been made in recent years, regulation of the legal profession remains overly complex and inconsistent with each State and Territory applying different sets of rules. At the request of the COAG, the Commonwealth Attorney-General, the Hon Robert McClelland MP, has established a Taskforce to prepare draft legislation by to uniformly regulate the legal profession across Australia. The hope is that the work will deliver a seamless national economy, which is particularly important in the wake of the Global Financial Crisis. The benefits of a national scheme will be enjoyed not only by the legal profession, but by business and the community in general. The Attorney-General has created a Taskforce to deliver this new regulatory framework, and an officer-level working group is assisting the Taskforce with the provision of policy advice and secretariat support. The Attorney-General has also established a Consultative Group chaired by Professor the Hon Michael Lavarch, Executive Dean at Queensland University of Technology and former Commonwealth Attorney-General, to advise and 16
assist the Taskforce in its work. The Consultative Group has included members from every State and Territory and represents expertise from regulators, the courts, consumers, the legal profession and legal educators. Any new system regulating the practise of law in Australia must be structured so that preserves the independence of the legal profession and benefits consumers of legal services. In its response to the Government’s Legal Profession Taskforce’s Regulatory Framework paper, the Law Council outlined a number of requirements that it believes the new system must satisfy. One requirement that stands above all others is the independence of the legal profession, which is of critical importance to Australia’s system of justice. A vital part of having an independent legal profession is that its members set the standards of professional conduct, and also play a part in the regulation of the profession. The new system must accept these fundamental propositions. A new regulatory framework must also cater to the needs of consumers. Uniform and simplified laws are needed to ease the compliance burden on lawyers and reduce costs and complexity. This will result in a more efficient and affordable legal system for all Australians.
We support the idea of a National Legal Services Board to oversee the operation of the national framework. We also support a National Legal Services Ombudsman to administer and oversee a national complaints-handling framework, provided that it leads to a reduction in the cost of managing complaints and allows consumer disputes to be resolved efficiently. Our legal profession is currently the most overregulated profession in the country. Moving to a truly national, uniform regulatory framework is in the best interests of lawyers and consumers alike. •
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Laws Are No Match for Refugees By Graham Macafee, Civil Liberties Australia
Laws can’t stop refugees, any more than Canute could stop the tides. Motivated by persecution, hunger or the wish for a better life, people will always seek a distant shore. Australia should, argues Graham Macafee, re-think our approach to refugees to produce a policy informed by historical lessons and based on current humanity. In England as late as 1830, orphans as young as nine were still being publicly hanged outside Newgate Prison in London for petty thefts as a warning that property must be respected. Some death sentences on children were commuted to a life of penal servitude in New South Wales. In 1788, the first convicts transported to Sydney included an orphaned chimney sweep who had stolen a silk scarf. At the time, there were more than 200 hanging offences in England including impersonating an Egyptian. But the ultimate penalty did not deter orphans, thieves or prostitutes in dire straits due to social conditions.
Australia is no longer ‘white’ and protectionism is history. Provided terror, crime or quarantine are not involved, money and goods can cross our border at will. But autonomy is denied to refugees who are demonised and punished with a colonial era Governor’s Pleasure prison sentence imposed, not by a judge in an open court, but in secret by an anonymous government clerk. Setting a limit on refugee arrivals, and punishing those who disobey, is as ridiculous and as futile as setting a limit on hospital admissions and imprisoning over-quota burn victims after a bushfire. People in dire straits do not give, nor should they give, a rat’s backside about quotas, policies or politicians. Australia’s job is to care for, not demonise and punish, people in dire straits. But Why Are Refugees Australia’s Problem? Because, we signed three UN Conventions.
In the early 1800s, Governor Bligh tried to enforce British laws that prohibited rum imports. He was deposed in the Rum Rebellion of 1808. Governor Macquarie legalised and taxed alcohol imports. He spent the revenue on overdue public works.
The UN Convention on Refugees We agreed that no Australian law will make it a crime for a person to seek to enter Australia to ask for asylum. Our mandatory detention laws have broken that agreement.
When Australia federated in 1901, the main debates in Parliament where about free trade versus protectionism and keeping Australia ‘white’.
The UN Convention on Prisoners We agreed that there would be no executions or prison sentences without a fair trial in an open
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court. Our detention laws, remote detention sites, and indefinite sentences have trashed that agreement. The UN Convention on Children Kidnapping and imprisoning children in a remote detention centre and subjecting them to an indefinite period of mental and emotional pain (and social deprivation) has debauched that agreement. What About Economic Refugees? Only a well-fed Cabinet Minister who has never missed more than two meals in a row could devise laws that deem dying from persecution is more noble than dying from poverty or starvation. What About Well-Heeled Queue Jumpers? If there are no intake quotas, there are no queues to jump.
The government’s role is to present evidence to the court within three months of any terror or criminal links that would cause the court to issue a deportation order for the government to enforce, or an arrest warrant for terror links. What About The Huge Resettlement Costs? If the the huge apparatus of detection and detention is wound down, the savings could be used to subside community housing for arrivals English classes, and employment initiatives. The better way is do no harm. It’s what all doctors vow to do upon their graduation. •
A Way Forward: How To Protect Our Borders and Be Humane All decisions that result in imprisonment must be made by a court. Bail is available if an Australian citizen posts the surety cash. All investigations into terror or crime links should take three months. If the government can’t provide evidence within that time, the court grants full citizenship to the asylum seeker. Cases should not be held over over under any circumstances. What if There are Delays? • It hires more and more investigation officers • The three-month deadline is never varied • The asylum seeker does not have to give evidence, nor does he or she have to provide documents • The onus of proof of any terror or crime links resides in perpetuity with the government • The court disregards any entry quotas • You are a refugee if you say you are • You enter Australia if a court says so
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Reform of ANU Law School By Benjamin Moody and Melanie Poole
“It was awful in those days. We had these huge lectures of more than 100 people, and the lecturer would basically talk in a monotone, then everyone would just regurgitate the textbook for exams”. –Professor Hilary Charlesworth For many students, law school in the 21st Century is no different to that which Hilary Charlesworth experienced. We arrive full of ideals, wanting to become better people. We expect to expand our minds, learn to ‘think’, gain ‘analytical skills’, and qualify for entry into a murky social elite of future senior counsels, high court justices, prime ministers and human rights advocates. The reality is, however, for many law students, far removed from this. As QUT Law Professor Sally Kift recently said, “a doctrinal-heavy education will not …equip law graduates with necessary practice and lawyering skills and attitudes, particularly the strong ethical base and sense of professionalism, needed to perform effectively in the modern global workplace. Add to this that research has consistently shown that only 50%-60% of law graduates will remain in long-term legal practice and that …graduating students will now routinely go through several changes of career in their working lives…The priorities the Academy may wish to pursue [include] the urgent need to reconceptualise the law curriculum…” 20
A few months ago, a few frustrated law students created a facebook group, ‘Law School REFORM!’ to get student ideas for input into the upcoming review of the College of Law curriculum. What began as a few students sharing their law school experiences has now grown into the beginnings of a movement to help ANU students define the terms on which a curriculum review will be conducted and push for genuine reform. The experience of law school which has emerged in initial submissions to the newly established LAW SCHOOL REFORM! Committee has been one of disenchantment, apathy and disengagement. For many students the law school experience is one of constant frustration, of unfair grades, missing class, and regurgitating plagiarised summaries in final exams. Students are frustrated by a lack of assessment transparency, which leaves students who do badly in their first semesters in law disillusioned with the college, and disengaging mass group teaching. A sense exists amongst law students that law is not about engaging with course content, working hard, and taking a real interest in what is being learnt. It rewards not hard work, but a particular blend of street-smarts, academic dishonesty and corner-cutting. Students know that they will, eventually, only have 3 hours in an exam to prove their knowledge of an entire course. In the words of one consistently high-achieving law student previously on the Law
Students’ Society Executive, “The courses I’ve worked the least for are the ones I’ve done best in. It’s all about the last two weeks before the exam.”
lawyers prepared to do the bidding of their corporate clients without asking any embarrassing questions about the impact of their activities.”
The trick is not reading the full cases, engaging with the development of the common law and the intellectual meat of the subject matter—you can get past all of that by using control-F. The trick is reading case summaries from LexisNexis and Lawbook Online, copying and pasting other people’s summaries, and using condensed study guides.
Even students who remain engaged with their degree are increasingly concerned by the potential impracticality of their degree in the workforce. A dearth of practical coursework means that for many students their legal education remains abstract, and little attention is given to the development of legal skills or tangible engagement with legal content through programmes such as mooting. Lacklustre international competitiveness due to poor linkages and unfair marking practices places ANU graduates at a distinct disadvantage in the international arena.
Students learn, usually very quickly, that reading, learning, and hard work will be irrelevant, that the only thing that matters is two lines of condensed principle to be regurgitated mechanically across an 80% exam paper. Students actively ignore any course content which moves beyond what they know they will need for their exam summaries, and what they know they can regurgitate in those three hours at the end of semester. The structure of marking and assessment is essentially creating entire swathes of law students who are disengaged, disillusioned, and disinterested by the degree which will take up a significant portion of their youth. Disillusionment with the study of law is compounded by the culture associated with the degree, which, despite assertions to the contrary, downplays the very social justice and human rights concerns which prompt many students to take up the study of law. The competitive culture of the College, reinforced by the gap that quickly emerges between students who ‘get it’ and those who become frustrated and disengaged, asserts the importance of clerkships and corporate prestige. The teaching of compulsory law courses in a mechanical fashion, void of critical analysis or engagement with the broader social, historical, and political context of the law does not broaden, but rather narrows, the horizons of students. As ANU Professor Margaret Thornton has put it, “students will focus on becoming good technocratic
But an opportunity has emerged to instigate change. The ANU will be undertaking a review of the College of Law curriculum in 2010, to be presented in October. The time has come for students to let their voices be heard and take control of the reform process. By telling the College of Law what needs to change, and how. The Law School REFORM! Committee is an independent, nonhierarchical organisation of law students seeking change, but we need ANU law students to voice their grievances, to air suggestions, and to help us engage with the College and draft submissions for the curriculum review in 2010. With the right approach, we can instigate change. No institution is immovable, and the law school experience can be different. We can move away from exam-based assessment and an academic culture of rote-learning. An increase in research essay assessments would allow students to explore the areas of the law they are interested in, and develop an in-depth critical understanding of the law. In a research-led university such as the ANU a focus on exam-based, rather than research-driven learning seems strange. It is possible to get through law school without undertaking any independent research at all. Even Honours marks are still dependent on marks from 21
exam based coursework. Practical coursework can also make our degrees more diverse and applicable. Moves are underway, for example, to reform the compulsory Evidence course to include witness examination competitions as optional assessment. This is an approach that can give students practical skills and experience during their undergraduate experience. We can push for similar reforms in other subjects, particularly those which blatantly call for it - such as Litigation and Dispute Management, a notoriously unpopular course, yet one which has 22 the potential to be dynamic and exciting.
If you think your law school experience could be different, join the Facebook group (search ‘Law School REFORM!’) and post your thoughts. A chance for genuine reform has arrived, and ANU students can have their voices heard. Don’t miss this opportunity, speak out and help work for an engaging and valuable law school experience! •
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The State of the Profession By John Corcoran, President, Law Council of Australia
One of the staggering features of the Australian legal profession is its extraordinary diversity. We have sole practitioners, lawyers in regional practices, suburban lawyers, commercial lawyers in top-tier firms, barristers, judges, solicitors in legal aid offices and Community Legal Centres, in-house lawyers, young lawyers, women lawyers, Government lawyers, and so on. So, how did all these very different segments of our profession fair in 2009? It depends on where you look. I will begin with a couple of matters affecting all lawyers. The Global Financial Crisis Many in the profession encountered some very difficult economic times at the start of last year. As the Global Financial Crisis impacted on the clients of Australian law firms, there was, in turn, an impact on the firms themselves. After all, it is difficult for law firms to be busy when their clients are not busy. For the first time for many years, job security was at the forefront of many lawyersĂ minds. Happily, economic conditions improved over the course of last year. The Australian legal profession has handled the crisis better than many other nations. There have been job losses, but certainly not on the scale seen elsewhere. However, there is little room for complacency. 24
Now is a better time than ever for lawyers to improve their value by placing their skills and experience under the microscope and assessing what they need to do to become an even better practitioner. National Legal Profession Reform All Australian lawyers stand to benefit from uniform national legal profession regulation. Given the enormous contribution professional legal services make to AustraliaĂs economy in both a national and international sense, it is simply unacceptable that we do not yet have a uniform, simple piece of legislation to promote efficient legal practice on a national scale. Our legal profession is currently the most overregulated profession in Australia. Lawyers have to work their way through a myriad of rules, some of which are inconsistent, especially across jurisdictions. These jurisdictional differences add to the compliance burden for both law practices and individual practitioners. They also increase the cost of legal services for consumers. Earlier last year, the Australian Government announced that legal profession reform would be added by the Council of Australian Governments (COAG) to AustraliaĂs micro-economic reform agenda. Last April, the Prime Minister and Attorney-General announced the formation of a National Legal Profession Taskforce.
National legal profession reform promises benefits beyond merely reducing compliance costs. The overall goal is to move towards a more functional and efficient Australian legal services market. The approach is to establish an integrated regulatory framework in each state and territory that is underpinned by uniform legislation. Access to Justice Australian lawyers who rely on funding from the legal assistance sector are doing it tough. More than 10 years of ineffective access to justice policies have produced a dire set of circumstances. The legal assistance sector is facing an impending crisis over the coming 12 months as a result of the increased strain on legal aid services arising from the global financial crisis as well as other factors. Lawyers working in this sector must receive reasonable compensation. If this does not occur, we run a serious risk of losing more lawyers in the legal assistance sector. A survey commissioned by the Attorney-Generals Department last year revealed that one in three Australian law firms that are currently practising family or criminal law have moved away from providing legal aid services. The key reason cited was the rate of remuneration. According to the study, in most cases, the rate for legal aid work is, at best, 50 per cent less than if the work was paid for commercially. In 2008, the Victorian Bar commissioned a study into the fees paid by Victoria Legal Aid to barristers in criminal cases. The report expressed serious concerns that the under-funding of Victoria’s criminal justice system over the past 15 years could lead to increased costs from aborted trials and retrials and poorer outcomes for victims and defendants alike. As the report identifies, to maintain the viability of a fair justice system, it is essential that the underfunding of legal aid barristers be addressed. The effective annual income of a junior legal aid
barrister is less than $40,000 per annum. This is because their real take home pay has fallen by between 25 and 40 per cent over the past 15 years. These are all extremely worrying figures. When lawyers see little future in handling work like criminal law work for instance, this becomes more than just a problem for the legal profession; it ultimately becomes a problem for the Australian Government and society in general. Without a properly funded justice system, there are flow on costs to the community resulting from delays in the court process and an explosion in the number of self-represented litigants. This is also a rule of law issue. If a significant percentage of the community cannot access the courts and engage the legal system then, we do not have justice for all. Women Lawyers Despite increasing opportunities in Australia for women in the law, there is an enormous amount of work still to do in this area. From a female lawyer’s perspective, the legal profession is, unfortunately, far from a level playing field. The Law Council’s Equalising Opportunities in the Law (EOL) Committee recently commissioned a consulting company to independently conduct a Court Appearance Survey. The survey will provide robust and reliable data on the nature of appearances by legally trained people in Australiaís superior courts. The results of the survey are expected to be released shortly. It is expected that the survey results will confirm what we already strongly suspect that female barristers and advocates are underrepresented in Australiaís superior courts, when compared to the number of women overall in the profession. Late last year, some figures were released that illustrated that women in general were struggling when it came to closing the gap in pay across all forms of employment. Indeed, for some occupations the gap is widening.
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Young Lawyers Despite the many challenges we face, the future of the profession looks bright for our young lawyers. The inaugural Australian Young Lawyers Conference is being held in conjunction with this Convention, and let me say what a pleasure it is to have so many young lawyers here today. Australia has 35 law schools producing about 6,000 law graduates a year and there are so many options out there for them. There are careers in small, mid and top-tier firms, suburban firms, Government departments, non-government organisations, Community Legal Centres and Legal Aid Commissions. And of course, as we are all now fully aware, there are countless opportunities for law graduates in rural and regional Australia. To fully harness emerging talent within the legal profession, we need to appreciate the career perspectives of todayís young lawyers. According to the Australian Law Students Association (ALSA), anecdotal evidence indicates that, unlike generations that have gone before them, todayís law graduates see the world as one, large, ever-shrinking market. They donít feel restricted to working in one jurisdiction and have few qualms about moving their career within Australia or around the world. 26
Furthermore, gone are the days when firms sign up graduates for life. ALSA believes todayís law graduates and young lawyers donít view anything they do during the first 10 years of their career as anything but a stepping stone to something bigger and better. The legal profession must cater to these needs. Common Goals The Australian profession may be diverse, but for all our differences, there are also things we have in common. As lawyers, we are all committed to the administration of justice and the rule of law. An independent legal profession is crucial to building and maintaining a society in which the rule of law and human rights are respected. Without access to competent and independent legal practitioners, people are often unaware of or unable to exercise their rights effectively. When this occurs, the protections afforded both victims and defendants under domestic and international law are rendered meaningless. The important matter to note about the nature of the legal representation provided by members of the Australian profession is that it should be available to all, regardless of where they come from or the nature of the accusations against them. •
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National Human Rights Consultation Report Handed Down By Father Frank Brennan Chair of the National Human Rights Consultation
Mary Kostakidis, Tammy Williams, Mick Palmer and I spent four months traversing this land, from Christmas Island to Palm Island, from Yirrkala to Devonport. Neither did we miss the Centre, attending community roundtables in Coober Pedy, Mintabie, Kalgoorlie, Charleville, Alice Springs and Santa Teresa. Thousands of concerned citizens came and spent time with us, sharing their views on how we might better protect human rights in Australia. People with wildly divergent opinions about social, moral, political and legal questions came and had their say. Only once did a participant harangue the audience. The respect and tolerance we show each other in the public domain is one of the great things about Australia. I doubt there are many other countries where these community roundtables could have been conducted so peacefully. Our three days of public hearings in the Great Hall of Parliament House in Canberra featured a diverse range of Australians agitating the big questions of this National Human Rights Consultation including whether we need an Australian Human Rights Act. Never before has a public consultation generated so much interest: the Committee received more than 35 000 submissions. Mary, Tammy, Mick and I had obviously been chosen because we are Australians with very different backgrounds and perspectives. We started with our differences, and we still have some. 28
The government entrusted us to feed back what we heard from the Australian community. This we have tried to do. We came to the task confident that Australia is a nation that prides itself on ëthe fair goí but knowing that much could be done to improve human rights, especially the human rights of people who fall between the cracks in our egalitarian society. We also knew our task was politically charged because many citizens wanted to focus on the question of whether we should have an Australian Human Rights Act. The Coalition parties were opposed. The Labor Party was divided. In this regard we were attentive to those who sought us out at a community roundtable, on the online forum, on Facebook, at the public hearings or through submissions. We also commissioned detailed research with focus groups, a national telephone survey, and devolved consultations with some of Australia’s most vulnerable people. The clearest finding from our work is that Australians know little about their human rights or what they are, where they come from and how they are protected. They need and want education. They need and want to create a better culture of human rights in those organisations that deliver public services to the community. We hope that this detailed report, the commissioned research, the thousands of submissions received and published (available on the consultation website) and the online forum will be
useful educational resources for years to come. Many Australians would like to see our national government and parliament take more notice of human rights as they draft laws and make policies. Ultimately, it is for our elected politicians to decide whether they will voluntarily restrict their powers or impose criteria for law making so as to guarantee fairness for all Australians, including those with the least power and the greatest need. Our elected leaders could adopt many of the recommendations in this report without deciding to grant judges any additional power to scrutinise the actions of public servants or to interpret laws in a manner consistent with human rights. Alternatively, they could decide to take the extra step, engaging the courts as a guarantee that our politicians and the public service will be kept accountable in respecting, protecting and promoting the human rights of all Australians.
were implemented tomorrow, there would still be vulnerable Australians missing out, especially on the essential economic and social rights of greatest concern to the community health, housing and education. Responsibility for meeting these needs cannot rest solely with government and the vulnerable themselves. We need to take responsibility for each other. A free and confident Australia has always been on the path to better human rights protection. At times our leaders such as HV Evatt and Jessie Street have taken great strides on this path, showing the world a way forward. The Australian community’s fabulous response to this Consultation suggests that the time is right for our elected leaders to take new steps to protect and promote human rights. Each step for human rights can take us further on the path to dignity and fairness. •
If they do choose to take that extra step, we have set out the way we think this can best be done faithful to what we heard, respectful of the sovereignty of parliament, and true to the Australian ideals of dignity and a fair go for all. Our suggestions are confined to the Federal Government and the Federal Parliament. The states and territories will continue to make their own decisions about these matters. But we hope they will follow any good new leads given by the Federal Government and the Federal Parliament. The Committee was privileged to make this journey. Along the way, we were joined by many dedicated helpers, among them Philip Flood, who assisted with community consultations, a hardworking Secretariat, and a wonderful team of writers led by Gaby Carney. The Committee, of course, accepts responsibility for any shortcomings in our procedures or findings. Even if all our recommendations
To download a copy of the report, visit: http://www.humanrightsconsultation.gov.au 29
Changes to Higher Education Scheme: The Impact on Law Students By the Australian Law Students Association
The Australian Law Students Association welcomes the measures contained in the Higher Education Support Amendment (2009 Budget Measures) Bill, passed by Federal Parliament last September. The measures aim to improve access to tertiary education by students of low socio-economic status (SES), but warned that universities would need to take care in implementing the proposed student-centred system of funding so as not to diminish the perceived quality of degrees offered. We also applaud the government’s indexation of government university funding as a means of reversing the funding cuts of the Howard Government, but pointed out that more still needs to be done.
and to support SES students completing their chosen degree. These initiatives will support increased enrolments by low SES students in law, which is vital to the future diversity of the legal profession and access to legal services by all sections of the community. In the past, we have expressed concerns that the high cost of a law degree and practical legal training, coupled with inadequate government support for student living expenses hampered equitable access to tertiary education. The fact that law school student bodies are not representative of the wider community due to such concerns reduces the future quality of justice and legal services to be delivered when those students graduate.
Given that universities were already underfunded in 1998, additional funding is needed in order to financially equip universities to improve the quality of education beyond its 1998 levels, the skills base of the Australian population and the international competitiveness of Australian universities.
In addition to introducing a student centred system of funding, where universities rather than the government will be able to decide how many government-funded places to offer in an approved course, the Bill will also establish an independent Tertiary Education Quality and Standards Agency in an effort to improve the quality of higher education.
The changes aimed at improving access to higher education to lower SES students include $108 million provided over four years to universities who establish partnerships with low SES schools, and vocational education and training providers and further financial incentive of $325 million will be given over four years to universities to increase their enrolment of low SES students
Despite the establishment of this independent regulator, we are concerned about the effect of these changes to the quality of education received and graduates produced if universities choose to expand the number of places for competitive entry degrees such as law. The quality of such degrees may be perceived as lower by the legal community if there are large increases in student
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places, and those perceptions may be correct if teaching resources, support services and facilities are stretched among more students, resulting in a lower quality education for those students. Under the Commonwealth Grant Scheme, law receives the lowest funding per student, leading to law having the worst staff-student ratios of any degree. Deregulating student places in tertiary education will not necessarily improve Australia’s skills base if quality is sacrificed to quantity. ALSA urges universities not to rapidly increase the number of places in law prior to the proposed review of the amount of funding each discipline receives. •
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The Human Rights of International Students By the Australian Human Rights Commission
The rights of international students are a significant human rights concern for national, state and territory human rights commissions in Australia and New Zealand. The Australia and New Zealand Race Relations Roundtable has described instances of racial harassment, abuse and violence directed at international students as symptoms of a whole range of human rights issues that need to be addressed, including their rights to non discrimination, equality of treatment, security of the person, access to justice, housing, information, freedom of religion and culture, and labour rights. Numbers of international students have grown rapidly over recent years and now make up a significant group of over half a million Australian residents whose human rights need to be safeguarded. There has also been rapid growth in New Zealand. The Australian Human Rights Commission has heard directly from international student representatives, researchers, education providers and government agencies. We were told that while student safety has received the most attention, it is a symptom of other issues including racism and discrimination, the lack of accessible and affordable accommodation, poor employment conditions, transport costs, lack of student support services, variable quality of education, and social isolation and exclusion. 32
We were also made aware of the importance of seeing the students not as cash cows, but as global citizens and Australian residents. Up to 40% of students are engaged in the workforce and around 20% go on to become permanent residents with a wide range of skills and qualifications. In response, the Australian Human Rights Commission has resolved to: • Highlight the treatment of international students as a major current human rights and race relations issue and stress the importance in any response of addressing it from a human rights perspective; • Note that the harassment and abuse of international students cannot be adequately addressed if the existence of racism as a significant factor is denied; • Call for more research into the actual experience of discrimination and harassment of international students in specific communities and contexts, including regular surveys of students by education providers to provide a better evidence base for policy decisions; • Call on the police to record complaints and incidences of racially motivated crime, and for education providers, local government and other stakeholders to provide accessible reporting systems for racial harassment and discrimination, including web-based systems;
• Encourage the provision of reliable and accessible web-based information to prospective international students, including about their human rights and support available;
• Continue to engage with stakeholders on the rights of international studentsí networks and forums. •
• Monitor progress in addressing the human rights of international students and support studentsí organisations in their advocacy and support for an improved experience for international students in Australia and New Zealand; • Increase public awareness of the rights of international students, their contribution to the Australian and New Zealand economies and societies, and the importance of speaking out when they witness instances of harassment, discrimination and abuse; and,
For more information on the Australian Human Rights Commissions’ campaign on international students, visit: http://www.hreoc.gov.au 33
CHAT (Come and Have A Talk): ANU College of Law’s Student Mentoring Scheme 2010 By Heather Roberts and Kath Hall All of the academic staff at the ANU College of Law remember what it was like adjusting to law school. Even before you start to engage with the subject matter of your courses, students may encounter challenges associated with university life or a new campus. These might be as simple as where’s the good coffee/tea? Or our favourite – so what’s a ‘summary’? But issues of accommodation, finances, settling into Canberra, relationships, handling stress or other life challenges can all impact on your experiences here at the ANU College of Law. The CHAT mentoring scheme was established by the College to enhance the supportive learning environment for first year Law students. It aims to provide both a first point of contact for guidance and support and an additional forum for first year students to meet each other and to build supportive relationships between them. And did you know that there is evidence that draws a link between student success and the contact they have with academic staff? (After all we don’t bite!) The scheme operates by allocating all first years enrolled in Foundations of Australian Law (a compulsory subject for first years) into a mentoring group with staff and later-year student mentors. Participation in CHAT is, of course, completely voluntary. During the year CHAT mentors will organise some activities for their group to help with some of the issues that can arise for law students.
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Feel free to discuss with your mentors any activities that you would find useful. But please remember that there are some things that the scheme cannot provide: staff and student mentors cannot provide you with detailed advice and guidance on issues raised with them, nor can they provide academic tutoring or feedback on academic work. But they will be there for a chat, and to provide informal guidance and referral to other support services. All the mentors have been first year students themselves … some more recently than others! We hope that through this scheme, staff and students will get to know each other better, which can help to make the Law School an even more collegial place to work and study. We would love to hear from you with any comments you may have, and look forward to receiving applications from you to be student mentors in later years. Heather Roberts & Kath Hall CHAT directors 2010 Email: chat@law.anu.edu.au
Summer Clerkship at the Attorney General’s Department By Isabelle Reinecke
How many acronyms do you use day-today? TV, SPF, www, LOL. Living in Canberra you’ve probably learnt a few more: ANU, OPH, APS. But how about AGD, OIPC, OILS, NCC, OIL, ILSAC, NADRAC, or ILHRD? On my first day at the Commonwealth Attorney-General’s Department I was handed a long menu of acronyms. What may at first seem to be public service bureaucracy was actually simply reflective of the extraordinarily diverse subject matter that the Department touches. From international crime cooperation, to native title and indigenous law and justice policy; from Free Trade Agreements on topics including intellectual property and legal services, to human rights; from inter-country adoption and child trafficking to national emergency management. The enormity of subjects is related to the scope of the Department’s mission to “create a just and fair society”. The Department is the central policy and coordinating element of the Attorney-General’s portfolio for which the Attorney-General, the Hon Robert McClelland MP, and the Home Affairs Minister, the Hon Brendan O’Connor MP, are responsible. The Summer Clerkship involves an eight week placement in one of the Department’s many sections. Unlike the shorter rotations in corporate clerkships, this lengthier period enables you to gain genuine responsibility and involvement in projects. While some paralegal-style research is involved, the range of tasks is also significantly broader and they carry greater responsibility than those in a corporate clerkship. During my time
at the Department, I drafted Guest of Government invitations to foreign ministers; determined whether due process breaches had been made by government agencies; met with the Japanese Minister of Justice to identify market access barriers for Australian lawyers in Japan; advised on obstacles and solutions to market liberalisation in India; and regularly communicated with senior staff of major Australian and Chinese law firms, the Law Council of Australia, AusAID, the Department of Foreign Affairs and Trade, and the Department of Prime Minister and Cabinet. This experience was invaluable. I recommend the Attorney-General’s Department’s Summer Clerkship program to students interested in public law and policy, students who aren’t inspired by providing legal services to huge corporations, to those just know they never want to record their work in six minute intervals, or to those who have no idea what they want to do when they ‘grow up’. With such a huge range of possibilities, you are certain to find an area that is challenging, interesting and underpinned by essential social values of justice and fairness. For further information on the program, see the website at http://www.agd.gov.au, or contact the program coordinator, Claire Head at claire.head@ agd.gov.au.
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SWinG - The ANU Geneva Summer Program By SWinGers 2010
The Summer/Winter Programme in Geneva isn’t well named. It might be summer in Australia at the time, but there is nothing even remotely warm about Geneva in January. Besides being a great way to reconnect with our law school comrades who, to be honest, we haven’t really seen for the last couple of years because of the wonders of digital lecture delivery, the SWinG course is the best and perhaps only way to find out the true parameters of international law. Geneva seems like the centre of the universe when you’re here. It is the home of all UN Human Rights and Humanitarian programmes as well as all of the associated organisations that make the world of international law work as it does. The programme, a three week introduction to the various institutions of international law based here in Geneva, is a real eye-opener. The course consists of visits to the UN bodies, non-governmental organisations and inter-governmental organisations that make this town tick.
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JP Fonteyne, despite the misgivings attributed to him for being Belgian, is extremely well-connected. There is no shortage of heads of legal departments or special legal advisors to important people and organisations to give the small group a run down of exactly what goes on here and how it happens. For anyone with a little too much idealism or a little too much direction in where they’re going in life, this is the course for you. Instead of having your mum tell you that your idealism is pointless because “that’s just not the way the world works,” you can figure out for yourself exactly how this intricate society of human rights-ers works and whether your aspirations are far-fetched or indeed closer to the truth than you ever imagined possible. The SWinG course is a must for anyone who is considering a career in international law, as a networking exercise as much as an invaluable insight into the pragmatics of the UN and all its associated organs. But be prepared; the more you learn, the less you know. Many an existential crisis has stemmed directly from this course. You probably won’t be any different.
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TransAsia: Clerking at a Chinese Law Firm By Patrick Mayoh
After leaving the Australian summer as a third year Asian Studies (Chinese)/Law student, I found myself on the 22nd floor of the World Trade Tower in Beijing’s bustling CBD reading through a satellite television landing agreement written in both Chinese and English. As the CCTV tower loomed over me in the background, I listened to my boss skillfully switch between perfectly fluent Mandarin and English as he advised a leading international media entity on television broadcasting rights in the PRC. Although I had lived and worked in China (“The Middle Kingdom”) on numerous occasions before returning to Beijing in the Year of the Ox, I quickly realised that I still had a lot to learn as an intern in a top-tier Chinese law firm. TransAsia Lawyers has a strong reputation in media & entertainment, employment and commercial law. The firm also advises international and domestic clients on real estate, private equity, IP, M&A, corporate accountability, antitrust, arbitration & litigation and crisis management. TransAsia holds a unique position in the PRC as it has a strong international and Chinese client base as well as close links with the PRC government. The firm has advised sizeable corporate entities including Alibaba, Bacardi-Martini, CNBC, Ericsson, Google, Microsoft, News Corporation and Time Warner, and has worked with the National Development and Reform Commission of the PRC and the State Administration of Radio, Film and Television (SARFT). TransAsia is also in alliance relationships with law firms around the globe, including its Australian partner Freehills and the leading Canadian firm Torys LLP. 38
Working in this dynamic environment provided me with a rich insight into the application of Chinese law to international commercial arrangements. In particular, I regularly assisted partners in advising foreign media entities looking to enter the Chinese market. Throughout my three months at the firm, I was extremely privileged to work closely with the Managing Partner (and ANU alumnus), Jesse Chang, on numerous media matters. This direct contact with a guru in the field helped me better comprehend the dynamics of commercial relations in China’s highly regulated media industry. TransAsia’s expertise in media law and the firm’s recent work with the SARFT comes at a time when the Chinese legal system is required to respond to innovative technologies and a growing body of international companies seeking to broadcast their content in the PRC. These demands, along with the state’s desire to closely monitor the broadcast of information to the masses, made for a fascinating internship experience. In the often unclear and nebulous media regulatory environment, the answers do not always lie in the black-letter law. As such, common sense and problem solving skills are indispensable. As part of the media and entertainment law team, I also spent time working on the firm’s authoritative publication China’s Media & Entertainment Law (Volume III). This academic slant balanced nicely with the intense periods my colleagues and I often had to work to meet strict deadlines for international clients (often working in different time zones). I was also involved in the research and preparation of TransAsia newsletters on recent legal rulings such as the
WTO Appellate Body’s ruling on the PRC government’s regulation of audiovisual imports. Fortunately, my command of Chinese allowed me to be involved in some of the larger deals. Being able to check English agreements against their Chinese versions and jump on baidu.com to search for background information on local companies allowed me to contribute effectively to the team’s effort. Although most of my colleagues spoke sound English, as a native English speaker in a Chinese law firm, a slice of my time was inevitably devoted to assisting colleagues edit English e-mails and legal documents for international clients. It is important to note that the culture at TransAsia is incredibly hardworking and demands long hours. If you are prepared to put in the effort, the experience is extremely rewarding. The dynamism of TransAsia’s work is truly exciting and would be hard to replicate in Australia. Indeed, whilst at TransAsia, my Outlook would receive new client/new matter messages on the hour every hour. This constant flow of work added to the buzz of living in a truly international city.
From karaoke nights to ice-skating sessions, from dumpling feasts to business banquets, Beijing is fascinating in the opportunities and contradictions it offers. My three months at TransAsia working in a new jurisdiction provided me with a worldly outlook on legal practice and an appreciation of the truly international opportunities that a Law/Asian Studies background offers. Having left TransAsia during the Chinese New Year to continue with my studies at ANU, there were many promising signs that this leading Chinese law firm will continue to prosper in the Year of the Tiger. If you have any questions about interning at TransAsia, please do not hesitate to contact me at patrickmayoh@yahoo.com.au. If you would like to apply for an internship position, please contact Henry Makeham (President of the Australia-China Youth Association which facilitates the internship program) at henry.makeham@acya.org.au Patrick Mayoh 39
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“A career at
Freshfields is not for everyone... ...it requires determination, intelligence and creativity. However, for those with the right qualities, the chance to enjoy excellent prospects working with prestigious clients and transactions awaits.“ Teresa Ko, China Managing Partner, Hong Kong
Interested? Please visit our website at www.freshfields.com/chinarecruiting or contact our Graduate Recruitment team at chinagraduates@freshfields.com
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News in Brief
________________________________________________________________ And so, dear reader, we reach the end of another year of outrageous legal moments. The Floodgates of Litigation Only in America. A litigious Chicago resident is seeking more that $60,000 in damages after she slipped next to the dolphin exhibition at the Brookfield Zoo. The woman has filed suit claiming that staff encouraged the dolphins to splash water while failing to protect visitors from wet surfaces. Peppercorn hopes that next time she visits the zoo, the monkeys throw poo at her. • Cross-Dressing Widower in Female-Only Gym Yes, you read the headline correctly. A Hong-Kong man has been arrested after using the membership card of his dead wife to exercise in the female section of an exclusive gym. The man also dressed in his wife’s clothing to avoid suspicion. It appears his attempts were unsuccessful. • Bum Lecturer A law lecturer from Lismore’s Southern Cross University has been held in contempt of court after flashing her academic backside at District Court Judge Stuart Durwood. After refusing representation, the wayward academic proceeded to yell at the courtroom and wrestle with correctional services. • Business Behind the Wheel A Victorian man has been charged with careless driving after police witnessed him careering through the Eastlink Tunnel with a phone in each hand and steering with his knees. • Lost Corpse, Found In a heart-warming story, police in India’s northern Uttar Pradesh state have located a human body that had been misplaced for two years. Officials were relieved after the body of the 22-year-old man was finally discovered on the police station roof! The local area commander has apologized to the family and processes are underway to have the remains return to the family. • Fail: The Lynx Effect In litigation news, an Indian man is suing the maker of Lynx deodorant claiming that the product has failed to attract any female attention in the past 7 years. While wearing Lynx since 2002, the man claims to have suffered loss arising from the failure of semi-naked women featured in the product’s advertisements to materialize around him. •
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Racism: Alive and Well News in Brief delivers up another unbelievable story from the United States, where a Louisiana justice of the peace has refused to issue a marriage license to an interracial couple. The Tangipahoa Parish JP refused to issue the license on the grounds that interracial marriages usually don’t last. The offending JP defended himself, saying, ‘I’m not a racist. I just don’t believe in mixing the races that way’. He also claimed to have ‘piles and piles of black friends’. Sure. • And More Racism. Texas police officials have been forced to publicly apologise after local officers ‘embraced’ a virtually unknown federal statute requiring heavy vehicle drivers to have sufficient English proficiency. At least 39 drivers received traffic tickets because they couldn’t speak English; one ticket was simply written as ‘non English speaking driver.’ • More Drink Driving! A Tenant Creek man has been fined $1000 and disqualified for 6 months after police arrested him for riding a horse while intoxicated. Police seem to have been reasonable on this occasion. After repeatedly asking the man to walk his steed, an unknown accomplice lifted him aboard and he galloped up the street shouting. • A Minnesota man has been arrested for driving under the influence. More impressively, the motorised armchair he was driving has been seized and will soon be placed on Ebay as permitted under State laws. The black and blue chair comes complete with radio, footrest, cup holder, nitrous oxide system and parachute. No reserve price has been set. • Finally, a North Queensland cyclist has been arrested after recording a blood alcohol reading of 0.28. Police became suspicious after the man rode his bike off the Bruce Highway into a ditch. • Pay Poor to Stop Breeding News in Brief brings you another tale of politicians ‘dealing’ with social problems. Last issue we reported on recent changes in Alice Springs to increase fines in the hope of reducing begging. Brilliant. This issue we report the controversial plan of a regional New Zealand mayor, who has proposed that the ‘appalling underclass’ be offered ‘financial inducements not to have children’. Thankfully, the plan would only involve voluntary sterilisation. •
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Peppercorn Issue 1 2010
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