Issue 3 2012 - 1
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Contents Issue #3, 2012
Regular
Irregular
Letter from the Editors Images from winter and Bushweek Blackletter: A Legal Fiction Stuff Law Students Like
5 23 38 40
Features
Work Rants on Social Media This Sporting Life Lawyer on Top: Jennifer Robinson Suing Geelong Grammar
13 15 18 27
Lecture Bingo Diary of a First Year Scalper City Never Sleeps So... You Want to be Admitted The Federal Law Review Compulsory Course Reviews, S2 Exchange to the University of Alabama What happened to Caterina’s? A Comprehensive Guide to Law Ball Dates
7, 43 8 10 29 31 32 33 34 35
Editorial Team
Dunja Cvjeticanin, Farzaneh Edraki, Aman Gaur, Callum Musto, Alexis Rosenberg, Madalein Rose Tier.
Contributors
An extra big thanks goes to you: Catherine Noonan, Matthew Rimmer, Ellen Trevanion, Elizabeth Lee, Katie Young, JD and Piers Blackstone. You complete us.
Contact
peppercornanu@gmail.com or ‘Like’ us on FB!
Acknowledgements
Peppercorn would like to thank the LSS, the ANU College of Law, Woroni and ANU Student Media, as well as our sponsors - Ashurst, Clayton Utz, Freehills, Allens Linklaters, Baker & McKenzie, King & Wood Mallesons, ANU Legal Workshop, Corrs Chambers Westgarth, Gilbert and Tobin Lawyers, Norton Rose and Gadens Lawyers - for their assistance in the publication of this issue.
The views expressed in Peppercorn are not necessarily the views of the LSS, ANUSA, sponsors or the editorial team.
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Many thanks to our sponsors...
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A word from Your Eds and gents looking for dates to the premier event of the ANU social calendar: Law Ball. Ever wanted to vent all that pent-up work-related angst on your Facebook page? You may think again after reading Catherine Noonan’s breakdown of the law surrounding social media work rants! You won’t ever be able to watch the footy in the same way after reading Matthew Rimmer’s article on intellectual property in Australian sport.
Proof that at least one of your editors knows how to have fun.
Welcome back kids! Here’s hoping everyone had an awesome break. For those of you who stayed (or were held against their will) to be cryoed in Canberra, we’ve got some stuff to slowly thaw you back to that healthy, rosycheeked 37.0 °C. Maybe you were lucky enough to fit in a cheeky Euro-trip or become comatose on a Bali beach? We’ve got everything you need to gently re-adjust to life at ANU law. This edition, we’re focusing on some of the issues raised when social media and technology collide with the law. For your reading pleasure, we’ve procured some juicy law and technology inspired titbits brought to you by our diligent contributors.
Graduating this year, or just want to fill out that five-year life plan? ANU Legal Workshop’s Elizabeth Lee gives us the breakdown on getting admitted. All this and more on: scalping tickets, suing Geelong Grammar, the fate of Caterina’s, Federal Law Review, the Alabama program and the trials and tribulations of first year… So, sit back and relax. We did.
Your Peppercorn Editors xox
Peppercorn Advice Guide
Want to know what it would be like to defend Julian Assange? International human rights lawyer and ANU graduate Jennifer Robinson has given Peppercorn the scoop! Looking for love (or at least a memorable night)? Peppercorn provides the comprehensive guide for ladies
Post-Script The LSS Elections are lining up to be slighty-more scintillating than dull this year, with word a good few competitors are vying for the Presendential spot. Contenders allegedly include those involved in Social Justice, a J.D. active at ALSA, and, despite public statements to the contrary, the LSS’ main administrator. But we’re looking at YOU, dear reader! If you’ve enjoyed Peppercorn this year; or haven’t, and think you know how to make it better, the elections include spots for 2013’s Peppercorn Editors. If you want to know more about running, e-mail us at peppercornanu@gmail.com and we’ll give you the low down on what it takes!
WHAT LAWYERS WANT How to interpret your lady lawyer lover. SHE SAYS: “But for the intervening act, the chain of our causative love would have been unbroken.” SHE MEANS: “You shouldn’t have fucked my best friend.” SHE SAYS: “What would a reasonable person have said in the circumstances?” SHE MEANS: “When I ask you if I look good in a dress, the answer is always yes.” SHE SAYS: “Honey, your behaviour just ain’t jus cogens!” SHE MEANS: Stop being a tosser. Issue 3 2012 - 5
Want the inside scoop on landing a role at Clayton Utz? Find it on Facebook!
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www.facebook.com/ClaytonUtzCareers
Lecture S Bingo
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In our continuing endeavour to encourage you to attend lectures, Peppercorn presents Lecture Bingo for Semester Two compulsories. Take this page to class and cross off each word or sentence as you hear your lecturer say them. Don’t forget to shout ‘BINGO!’ when you get them all. It will be an nice surprise for all the slackers listening to the recording...
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UNCONSCIONABLE
ANNE GOES OFF ON AN UNHELPFUL TANGENT
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FOUR PAGE SUMMARY
ALEX EXPRESSES DISAPPOINTMENT OR FRUSTRATION WITH THE CLASS
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OPINIO JURIS
REGIONAL CUSTOM
ENFORCEMENT (+10 points if you ever hear this one)
RATIFICATION
NICARAGUA
JURISDICTION
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ORAL
INTERNATIONAL LAW
RESERVATION
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MERE PUFF
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Issue 3 2012 - 7
Diary of a First Year Hello later years,
Feeling slightly bitter? Feeling a bit depressed after results? No? Oh, don’t be such a liar. I suspect that what you need now is an opportunity for some therapeutic schadenfreude and I am here to provide it. So...sit back, pour yourself a (highly alcoholic) beverage and console yourself with the delusion that however deficient you feel now, you weren’t that bad when you were my age. I’m releasing this diary to the public just for you.
First Impressions – I will acknowledge that the ANU campus is very pretty. It’s rather nice to be surrounded by green ovals and there are lots of lovely spots to enjoy a bit of sun and fresh air. That said, why does it have to take longer than five minutes to get from one lecture to another and why do some lecturers insist on starting early? Foundies is interesting enough, I suppose, but Torts is spent giggling about ridiculous cases (Balmain Ferry anyone?). So far my greatest academic achievement has been actually understanding one of the jokes on the Law Memes Facebook page. I have already broken one bag and I’m starting to get sick of carrying books and a laptop around. I suspect the urge to take lots of books to class is a first year thing (Eds: You’re not wrong). We all want to look smart (that’s why they’re all thick) and widely read (hence the stack). I think we have also got the impression, probably from Legally Blonde, that all good, self-respecting, fashion-conscious lawyers use Macs. Initiation into the Mac cult is widespread. There is also a serious illness doing the rounds in the first year cohort. We are getting more and more pretentious every lecture. The words are longer and sentences more convoluted, incorporating double negatives, superfluous adjectives and horribly garbled Latin phrases lifted from those cartoons in the Laying Down the Law textbook.
Assessment 1 (Torts) – It’s ok, I’ll be fine! I was warned by some noble later years that the scenarios are almost always ridiculous and I was not disappointed. A cliff in the middle of Canberra suitable for hang-gliding? A mansion in Charnwood ? That said, I actually had some fun doing this assignment. I got a little carried away and then spent ages culling (I know, I should get a taste of what real problems look like). Of course, being the highly organised and methodical law student who does all their work early that I am, I in no way cut submission fine. My printer running out of black toner did not bother me at all. I had no issues with the printers at the library or with cover sheets. I did not spend valuable time working out whether I should put my lecturer or my tutor in the space marked ‘Lecturer/Tutor’. After the stress of actually getting the thing in, I decided that I needed a reward. 8 - Issue 3 2012
Later – I’m an idiot. I hate uni. So the holidays were for those Arts essays that are due in just when things start to get a bit tricky? Why didn’t anybody tell me?
Torts Assessment 2 – This one involved an unstable dam, a helicopter crash, a bizarrely aligned golf course and a difficult planning authority (ok, so that one is plausible). Also, who goes in a bike race to relax? And did anybody actually watch the final of My Kitchen Rules?
I’d be nowhere without the later years’ assistance. I know you all secretly resent us for being happy,
cheerful and optimistic, but they’ve helped put off the moment of agonising disillusionment and frustration that I gather is inevitable.
Exams – How does one even study for a Foundies exam? I suppose there are a number of things you could try. You could (1) read the textbook over and over again; (2) read the textbook and make lots of notes; (3) read the textbook and tab it extensively using an extremely elaborate, colour-coded system of post-it notes (that’s expensive people, the price of post-its is criminal); (4) develop an elaborate exam summary using the template we were given; (5) spend the time on Facebook engaging in some collective revision/panicking.
I suspect that all of those were trialled. I personally, to my shame, spent an inordinate time procrastiknit-
ting. By the time of the exam, at least, I had acquired several pairs of gloves to wear while writing in a sub-zero sports hall. It emerged on the day that there were a number of different approaches to ‘open book’ exams. Some people brought a dictionary and their notes. Many, myself included, opted for a textbook, small dictionary and notes. Others, clearly those harbouring a secret ambition to become a weightlifter brought in multiple dictionaries (one of them usually the size of a large paving slab), a couple of textbooks (seriously, where did you find the money?), reams of notes and a notebook. (Here I’d like to insert a grovelling apology to everyone in the Admin course. As if that exam isn’t bad enough, Foundies walked into your exam twenty minutes in and left early, ignoring most of the exam procedures and provoking an invigilator who probably enjoyed using the microphone anyway. Sorry!) Anyway, that was my first semester at law school. Despite everything, it has been fantastic and I can’t wait for the next one ... Don’t quote me on that though.
Yours very obiter,
A First Year xox
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by Dunja Cvjetićanin The ANU Law Ball is one of the biggest and most sought-after events on the ANU undergraduate calendar. Held at the Ballroom of our great Parliament House, it’s classy, it’s elegant, and it’s exciting, and at least one of those is true. In years passed, eager law students of all years would line up in the law foyer every May and hope upon hope that they would get their hands on a coveted ticket before they sold out. LSS members would get inflated heads from their 15 minutes of fame for being “the ones to talk to” for a ticket, and bribes and dodgy ticket practices had the potential to occur without being noticed. All of that changed in 2010, when the LSS had its first-ever electronic ticket sales. Tickets were purchased securely and on the basis of equal opportunity (as long as you had a good internet connection and knew to use Explorer rather than Chrome), table allocations were done with ease, and people were happy all over. Sure,
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Scalper City Never Sleeps some people missed out, but on the would-be scalpers, others have given whole, people were smiling, and all into the temptation, willing to pay the inflated prices for the prospect was good in the world. of taking part in the event. Now, Two years on, signs of moral cor- the finger is pointed at the LSS, with ruption and decay are appearing. people demanding a solution to the The Law Ball is transforming into an problem. The question is, was the evil cesspit, a horrible garden which LSS’ only goal in introducing elecgrows only sinblossoms. Grubby, tronic ticket sales to make organisawicked goblins are buying tickets tion easier, or did any part of it came and selling them on for grossly in- out of the wish to stop scalpers? flated amounts... or so it seems. As followers of this year’s event’s Face- “[The LSS] brought down the numbook page have seen, the $120 tickets ber of tickets [able to be purchased have been bought and then offered by one person] from 10 to 5 this time for resale for as much as $250, and ‘round so that we could avoid peorumour has it that alley sales of the ple buying up bulk tickets”, says LSS tickets have even hit $350, approach- President Chris Chynoweth. “We ing three times the original purchase also required each ticket holder’s name on each ticket. We hoped this price. would reduce scalping and we are While some onlookers have hit back confident that it has.” online by naming and shaming the
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As the system currently stands, the LSS organises the sale of tickets through an external ticket sales website which allows individuals to purchase up to five tickets each, with the name of a specific attendee recorded for each ticket. In the situation that a ticket holder can no longer attend the event, she or he then has two options: sell the ticket back to the LSS (and be refunded the purchase price) or attempt to sell it privately. Where the second option is chosen, the LSS requires the purchaser to contact them with the name of the new ticket holder, to be put onto the list of attendees. As can be seen, this system does nothing to prevent scalping. It protects the security of the event by recording the names of all attendees but puts no limit on the amount that can be charged for the ticket in a private transaction. Chynoweth, like the rest of the LSS, is aware that the practice has not been eliminated. “[Scalping] is incredibly annoying. … The law ball is an opportunity for our members to enjoy themselves and have a great time [and] not an opportunity for [purchasers] to scalp tickets and make profits. [Scalping] not ethical and not what we want out of the event”. Yet, nothing is being done to stop the practice. Perhaps the LSS should take a cue from the wider entertainment industry. In a recent attempt to reduce scalping, Comedian Louis C.K. brought in a novel system for his latest live show in the US. Making his website the only place people can buy legitimate tickets (for $45), his ticket management team cancels any tickets which are sold on to others for more than $45. (Tickets can only be dealt with online, so would-be scalpers have to use the same technology
that C.K.’s team does.) The ticket is cancelled, the person attempting to sell it on gets the $45 refunded, and the ticket then returns to the pool of available tickets for the next legitimate purchaser. According to a statement C.K. made to comedy website Laughspin.com, the mechanism has reduced the amount of scalping from 25% (which is usual for shows of the sort) to under 1%. In response to the whole situation, C.K. noted that “[scalpers] tend to respond with indignance [sic] and a defensive
tronic medium the LSS has chosen. If the technology is there, why not use it, thereby protecting LSS members and fellow Law Ball goers? Furthermore, if, as LSS President Chris Chynoweth has stated, the LSS already “runs the Law Ball at a loss every year”, why give others the opportunity to make a profit? The scalping problem is clearly a big one, and has attracted the attention and outrage of many through the Law Ball Facebook page (extracted below). In the spirit of equality, camaraderie and fun, it’s an issue that deserves closer attention by the LSS. Perhaps, by so doing, the process of moral decay can be reversed sooner rather than later. --------------------------------------
Facebook responses
posture. ‘Hey man! Scalping is NOT a crime!’ We’re not treating it as a crime or even a wrong-doing. We are just competing with them, on behalf of my fans, to enforce the terms and conditions of our ticket sales and to keep the prices down.” Perhaps the LSS should consider a system like this. While returning your ticket to the LSS is an option, the fact that private sales can go on without restriction or regulation means that a space is opened up for scalpers to make their money. As Louis C.K. has seen, better results can be seen through better utilisation of the elec-
A Facebook debate was sparked over the break by the following post by Suzie Mtonga: “Selling a law ball ticket for $250 or more! Let me know if anyone wants it. FB msg me.” While Mtonga has stated that she did not intend that her invitation-to-treat be taken seriously, commenting that she thought it was “ridiculous that people are selling them for so much and how much people are willing to pay for one night!”, the post elicited a huge response. Commenting on the post, the LSS urged Mtonga to “sell the ticket for what you paid for”, while another attendee, Mary*, wrote an entire post in response. Mary’s post and the huge student response that followed it is extracted below. (Some names have been changed according to the commenter’s wish-
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What do YOU think? Let the LSS know! ||||||||||||||||||||||||||||||||| Dunja out, yo.
Work
Rants
On Social Media Catherine Noonan provides a guide to the legal consequences of bitching about your boss on your facebook.
It can safely be said that the vast majority of university students and graduates are active on some form of social media. It’s a convenient way to keep in touch with others and inspire jealousy in the few left stranded in Canberra for the winter break. But it’s well known that employers use social media to check the ‘character’ of candidates. Restricting privacy settings and de-tagging unfavourable photos is commonly done to fool potential employers, but there is a lesser-discussed which can arise once you’ve secured the job. An emerging issue is the use of social media as a platform for disgruntled employees. This form of harm is known as ‘employee or work rants’. It is not uncommon for social media users to update their hundreds of friends or followers about their dissatisfaction with their employer. Despite the fact that many employers put in place mechanisms to limit access to social media at work, the increased use of smart phones and accessibility of social media outside work hours means employers are unable to control all negative content. To regulate the harm caused by social media, employers are increasingly enacting social media policies, which usually set out guidelines and expectations for the use of social media both inside and outside the workplace. In O’Keefe an employee posted an offensive comment to a colleague that contained inappropriate language. Fair Work Australia upheld the dismissal despite the fact the employee had
maximum privacy settings and a limited number of colleagues as ‘friends’. It was recognised that the employee handbook specified that this kind of behaviour was not acceptable. In contrast, in Linfox, FWA overturned the dismissal of an employee who also posted a ‘work rant’ on Facebook that made derogatory comments about his employer. In this case, the employer did not have a recognised policy in place that highlighted acceptable and unacceptable social media conduct. The increased usage of social media by organisations is still a relatively new phenomenon but one which is only going to gain momentum. As a result, it is likely that more organisations will choose to protect their business from ‘work rants’ by including social media clauses into employment contracts, particularly in light of precedent that is more likely to uphold dismissals supported by breach of a policy or employee handbook. Should employers be regulating conduct outside of work? There is an argument that if an employee has a private and personal social media account, employers should not be able to regulate this conduct outside of work. Mark Pearson, author of ‘Blogging and Tweeting Without Getting Sued’ contends that social media users need to be aware that they become publishers as soon as they hit the ‘send’ button and post 2012 - 13 meinformation on any formIssue of3social dia.
The basic laws regulating journalists and media organisations such as defamation, confidentiality and contempt are all still applicable to social media users. Therefore, if a ‘work rant’ defames an organisation or breaches employee conduct, it is possible for the law to extend to personal social media accounts. In this way, freedom of speech on social media is limited in the same way it is restricted in the traditional media. A Representative of your Employer Updating your employment record on social media to announce that you managed to score that competitive grad job is an easy way of bragging to all your peers. Representing yourself on social media as an employee of a certain organisation, however, may be problematic. Statements made through on media are a reflection of the organisation’s views and not your own opinion, particularly ones related to your employment. Although this aspect has not been very contentious so far, employers are increasingly determined to avoid the negative implications. To steer clear of controversy it may be best to avoid work-related statements and utilise social media only for a ‘social’ purpose. Employer Liability on Social Media Liability for conduct on social media is not a one-sided. Employers can also be found liable for representations made on their social media accounts. In 2010 the ACCC brought an action against Allergy Pathways for continuing to make misleading statements via their Facebook and Twitter accounts. The court found that the statements were misleading, and held Allergy Pathway responsible for comments posted by third parties. Liability extended to these comments because Allergy Pathway knew them to be misleading and failed to remove them. If a breach of the Trade Practices Act occurs through social media, individuals are able to bring an action against the organisation.
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What does this mean for me as a social media user? Users need to be aware that although they might be utilising social media for the social aspect, employers and the courts are applying the legal implications of traditional forms of media to social media. As a user of social media this means you should: 1. Be aware that ‘work rants’ can have legal ramifications 2. Check whether your employer has a social media policy, or whether they consider that this falls within the employee code of conduct 3. Go with your gut! If you are posting something you would not feel comfortable saying within your work place- do not post it 4. Be aware of your rights as a consumer in regards to corporations conduct on social media Organisations are aware that to remain competitive they must engage with social media. As this becomes increasingly common practice it is likely they will become more determined to avoid the pitfalls. While this legal issue develops it is best to err on the side of caution and sacrifice the potential ‘likes’ on your profile in order to remain employed and employable.
This Sporting Life Matthew Rimmer answers the question, ‘Who owns our sport?’
Sport occupies an anomalous position under Australian copyright law. A footballer like Gary Ablett Junior is not an author under copyright law, and a sporting spectacle like the AFL Grand Final or the State of Origin is not a dramatic work. Sporting events are protected somewhat peripherally as ‘television broadcasts’ under Australian copyright law. Nonetheless, sports organisations have engaged in special pleading in respect of intellectual property law. This has been particularly evident in the litigation between Optus, the National Rugby League (NRL), and the Australian Football League (AFL). […]
This litigation should be seen in the historical context of conflict over intellectual property and sport, wherein the High Court has commented, for example, that ‘[a] “spectacle” cannot be “owned” in any ordinary sense of that word’ (Latham CJ, Victoria Park Racing and Recreation Grounds Company v Taylor). In this current case, the Optus group of companies devised a new subscription service – ‘TV Now’ – which it offered in the mainland State capitals of Australia from mid-2011. This ‘time-shifting’ service enabled subscribers to record free-to-air television programmes when broadcast and to replay the programmes on a compatible Optus mobile device or personal computer at a time of their convenience. The head of the AFL, Andrew Demetriou, accused Optus of piracy, while the AFL and the NRL argued that the ‘TV Now’ service infringed their copyright interests of free-to-air broadcasts of their football games. Telstra was involved in the matter because it had obtained an exclusive licence to communicate to the public, by means of the internet and mobile telephone-enabled devices, free-to-air television broadcasts of both AFL and NRL matches. In the case of Singtel Optus Pty Ltd v National Rugby League Investments Pty Ltd, Rares J observed that ‘[e]ven though Optus
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or elsewhere to copy or record a broadcast’. […] On appeal, Finn, Emmett, and Bennett J came to a different conclusion. First, the judges held that Optus was responsible for the copying, and noted that, alternatively, ‘Optus and the subscriber could be said to be the maker for Copyright Act purposes as they acted in concert for the purpose of making a recording of the particular broadcast which the subscriber required to be made.’ Second, the judges held that Optus could not invoke the ‘private and domestic use’ defence of s 111 of the Copyright Act 1968 (Cth). Third, the judges noted that, in light of the conflicting interests and possible consequences, it should be left to the parliament to amend or reform the defence. Finally, the judges observed that the ruling was particular to the factual matrix surrounding Optus and TV Now. […] In response to the ruling, AFL chief executive Andrew Demetriou maintained that ‘common-sense prevailed’, and accused Optus of engaging in unethical behaviour. NRL chief executive David Gallop argued that ‘[w]e have always believed there was a clear principle in play here: that the sports are entitled to control who shows their events and who profits from those events.’ He maintained: ‘Companies should not be able to profit from our content without investing in the sport itself.’ Telstra spokesman Craig Middleton observed that the judgment was ‘vindication for the sporting bodies and the content providers’ and provided ‘certainty for the content providers, players, fans and sport in general. What was at stake was the future of content rights for sport.’ Such statements are a curious spin on the case – given that the role of copyright is to encourage learning and the creative arts. The Full Court of the Federal Court certainly 16 - Issue 3 2012
does not express a view in its judgment that the role of copyright law is to promote sporting entertainments. Optus has sought special leave to appeal to the High Court of Australia, to AFL chief executive Andrew Demetriou’s disgust. In any case, sporting organisations have demanded legislative changes to protect their broadcast rights. In February 2012, the chief executives of the AFL, Cricket Australia, NRL and Tennis Australia met the Prime Minister Julie Gillard, the Communications Minister Senator Stephen Conroy, the then Sports Minister Mark Arbib, and Attorney-General Nicola Roxon, to propose amendments to the Copyright Act. Julia Gillard observed: ‘We have said to [the sporting bodies] … that we will urgently consider options here. I think we are all concerned what this can mean for our great sporting codes and it was an unexpected development.’ As Kimberlee Weatherall has observed, it is difficult to conceive of a simple amendment in this particular area, as any change would have flow-on consequences for consumers, innovators and technology developers. Such a position represents a backflip for the Australian Labor Party. The late Senator Peter Cook supported a ‘time-shifting’ exception in copyright law during the Australia-United States Free Trade Agreement 2004. He was shocked that video recording matches of his beloved West Coast Eagles – while he was away on parliamentary duties - constituted an infringement of copyright law. The Australian Labor Party recommended ‘that the Senate Select Committee on Intellectual Property investigate options for possible amendments to the Copyright Act 1968 to expand the fair dealing exceptions to more closely reflect
the “fair use” doctrine that exists in the United States and to address the anomalies of “time shifting” and “space shifting” in Australia.’ It would appear that, in the case of sporting television broadcasts, the Gillard Government is willing to wind back such copyright exceptions. Such a decision reflects the close relationship that exists between the Gillard Government and the elite sporting codes. Sadly, the over-protection of sporting organisations under Australian copyright law may well have inadvertent impacts upon consumers, cloud computing, and technology developers. Unfortunately, the interests of consumers have been forgotten in this corporatist clash over copyright law. It is striking that Australian consumers do not enjoy the same freedoms and liberties as their counterparts in the United States and Singapore. A number of cloud computing companies – including Beem and MyTVR - have closed their operations because of concerns about the precedent of the Full Court of the Federal Court of Australia. Technology developers – with products and services related to time-shifting, space-shifting, and placeshifting – will be anxious about liability for authorizing copyright infringement in Australia.
Hopefully, the High Court of Australia will hear the appeal mounted by Optus. The legal dispute promises to be a spectacle to rival to the AFL Grand Final or the State of Origin – with elite sporting clubs and broadcasters pitted against telecommunications companies and sporting fans. My hope is that the balance of Australian copyright law is not distorted by the special pleading of sporting organisations.
Dr Matthew Rimmer is an Australian Research Council Future Fellow, an Associate Professor at the ANU College of Law, and an Associate Director of the Australian Centre for Intellectual Property in Agriculture. He is the author of Digital Copyright and the Consumer Revolution: Hands off my iPod. Dr Matthew Rimmer is an avid supporter of the Sydney Swans. He has a keen interest in intellectual property, and sport (and their combination).
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LAWYER ON TOP. Pepperc rn ‘s Farzaneh JenniferoR Ed aki talk o b s with hum work with t inson on her trim an ights la he London -based Beeart ANU, Wikileaksr , and herwryeer tha Founda cent tion. 18 - Issue 3 2012
You graduated with a University Medal with First Class Honours in Law and a Bachelor of Asian Studies at ANU. What were your experiences of undergrad at ANU?
Jennifer Robinson At a party to celebrate her Rhodes Scholarship, Jennifer Robinson’s friends were grouped into those she partied with on weekends, and those she studied with at the library on weekdays. Both were surprised at her alternate lifestyle. “You go out?” her studious friends asked, while her partying friends were equally stunned: “You study?” Years later, Jennifer still maintains the importance of a work-life balance. She has gone on to defend human rights abuses in West Papua, as well as the New York Times in their coverage of the phone-hacking story. She is perhaps best known, however, as her role as legal advisor to Julian Assange, which brought her into the media’s gaze as an advocate of free speech. These days she works at the human rights and public advocacy centre, the Bertha Foundation, though she still maintains links with and offers informal advice to Wikileaks. Oh, and on top of that, she’s writing a book about her time in West Papua. Busy? Yes. Were we surprised when she agreed to a Skype interview for our humble rag? Definitely.
JR: I chose ANU because it was the only university where I could study both Asian Studies and Law as a combined degree, and because of its emphasis on International Law. Canberra was perfect for me, coming from a small town on the Coast. I lived in Burton and Garran Hall and, to be honest, partied way too hard for my first three years at uni. Everything changed when I volunteered in West Papua. (Eds. note: While still studying, Jennifer volunteered with the Institute for Advocacy and Study of Human Rights (Elsham), a human rights organisation in Indonesia where she worked on projects involving the accountability of multinational corporations for human rights abuses, particularly the Freeport mine.) Working with refugees was an eye-opening, and at times, frightening experience. But it taught me just how important the law can be. It also taught me what difference a little legal knowledge can make. In April this year, you were delayed in checking in to London’s Heathrow Airport, on the basis that you were on an “inhibited” traveller’s list, by unknown government agencies. JR: Yes. As I tried to check in at Heathrow, the airport staff came back and said “we can’t check her in until we’ve checked with the Australian Embassy.” While the incident itself was relatively minor, it does raise serious questions: what sort of “inhibited” travel lists are there out there? And why? There was also significant other events like this happening well before the “travellist” incident. It certainly wasn’t pleasant, and shouldn’t be repeated for other lawyers or journalists. I was also the subject of a Human Rights Watch complaint instigated by the U.S. It’s a sad state of affairs – that an Australian lawyer practising in London should be the subject of this kind of attack.
Issue 3 2012 - 19
You used Twitter to communicate with followers about the ‘inhibited travellist’ incident, and Wikileaks and Greens Senator Scott Ludlam used their Twitter accounts to show support. Is this an example of new media “activism”? JR: I Tweeted the incident to get it on the record. It was my way of having a contemporaneous account of the event. I had no idea it was going to get the media attention that it did; but in some ways, I take heart from the fact that people were so up in arms. New media does provide a level of protection for lawyers. If you get mistreated by officials and you’re on your own, it’s a way of recording what happened. Do you ever hesitate to get involved in controversial cases? JR: I guess it might be easier to keep your head down, and work for a corporate law firm - but I’ve always made life choices on what makes my life most interesting, and I tend to take the hard road. Funnily enough, it’s the hard road that is most interesting. I feel very strongly about the controversial cases that I have been involved in. If the people I’ve defended can show moral courage in their cases, then lawyers ought to do the same.
Are the criticisms of Julian Assange’s new show on Russia TV, The World Tomorrow, justified? JR: The TV show has been misrepresented by the media as a product of the Kremlin. In fact, it’s an independently produced show on Russian TV. This misrepresentation is simply reflective of the broader failure of media. Julian’s show is fascinating in that he interacts with and asks tough questions of his guests, like the leader of Hezbollah. You’ve recently joined the Bertha Foundation – what work are you doing there? What will we hear from you next? JR: My work with the Bertha Foundation is twofold: helping to train and inspire young lawyers to do human rights work, as well as collaborating with film-makers and other journalists to run advocacy campaigns in social justice. We essentially aim to use different mediums to fulfil a broader advocacy role. I believe that raising awareness about human rights cases in the public domain is as important as representing victims in the cases themselves. To create change, you need to pursue issues, but unless you raise awareness in the community, you can’t create policy change will be backed up by enough community support to ensure that human rights abuses don’t happen twice.
Do you have any general words of advice to offer to law students? JR: Don’t get bogged down in readings. I know how it feels; I was there too. In years to come, you’ll see how important Admin is – though it might not seem like it at the time. Take time off in your degree; there’s no better way to gain perspective. After I finished volunteering in Indonesia, I deferred my degree and worked in England for another semester. Sure, my parents were worried at the time, but I knew it was what I wanted to do. Take up any opportunity of practical hands-on experience. While I was a student, I just wanted to get out there and do something. At the same time, there’s no substitute for hard work. I treated studying like a 9 – 5 job. Sure, I’d have my coffee at God’s, but I’d also make sure I got my work done. As well as studying Honours in my final year, I was
also interning with Human Rights Watch, and worked at a law firm 2 – 3 days a week. Really? How did you maintain that kind of intense workload?
JR: You’d be surprised at what you can do when you have to. The best advice I can give, though, is – no matter what you want to do, find somebody who is already doing that, and contact them. For me, that person was Geoffrey Robertson – and I ended up volunteering for him.
“You’d be surprised at what you can do when you have to.”
20 - Issue 3 2012
Matching ambition with opportunities You’ve worked hard. Done well. You have ambitions. We want you to experience the billion dollar deals, global clients and an environment where your ambition is supported by learning programs and partners with open doors. We believe it will make you a better lawyer. Ask us how Margot Kindley People Development Manager T 61 2 6234 4078 margot.kindley@ashurst.com
Level 11, 12 Moore Street Canberra ACT 2601 Australia T 61 2 6234 4000 F 61 2 6234 4111 WWW.ASHURST.COM
A U S T R A L I A B E L G I U M C H I N A F R A N C E G E R M A N Y H O N G K O N G SA R I N D O N E S I A ( A S S O C I AT E D O F F I C E ) I TA LY J A PA N P A P U A N E W G U I N E A S I N G A P O R E S PA I N S W E D E N U N I T E D A R A B E M I R AT E S U N I T E D K I N G D O M U N I T E D S TAT E S O F A M E R I C A
YOU KNEW US AS BLAKE DAWSON. NOW WE ARE ASHURST, AUSTRALIA’S NEW GLOBAL LAW FIRM. WE’RE MATCHING AUSTRALIAN LEGAL EXPERTISE WITH GLOBAL CAPABILITY. Issue 3 2012 - 21
The ANU LSS ALSA Conference delegates and competitors.
Your very own editor Farzaneh interns at the South Asia Human Rights Documentation Centre
Wint Bush IN PIC
ANU LSS Social Justice Stress Relief Week activties are a hit!
ANU Relive Law theStud magie busy with againthese theseha at home and If you’re attend If around you’relawschool attenaround lawschool,to: peppercornanu peppercornanu@
Some of the visiting students from the University of Alabama School of Law tour our courts.
22 - Issue 3 2012 Body Balance run by our fittest faculty member, Elizabeth Lee...
Social Justice runs an amazing Women in Law Breakfast.
Puppy Pals!
er & week TURES
ic ents of have first term been appy winter snaps. holidays abroad. ding an event l,ding sendan your event pics : send your pics @gmail.com @gmail.com
The team from ANU wins the DPP Moot!
The ILS Committee proves why they are law students at Bush Week Market Day.
ALSA attendees manage to fit in some sightseeing.
Issue 3 2012 - 23
BORN GL BAL Firm Details Baker & McKenzie was conceived and built as a global law firm, so thinking and working globally is embedded in our culture. Baker & McKenzie was formed in 1949 when an entrepreneurial Chicago attorney, Russell Baker, met the litigator, John McKenzie. McKenzie shared Baker’s vision of creating the world’s first multicultural, global law firm. The Firm’s second office was opened in Caracas in 1955. Our Australian story began in Sydney in 1964 and the Melbourne office was opened in 1982. Six decades later, Baker & McKenzie now has 70 offices in 42 countries. Our most recent offices to be opened were Doha in 2011 and Luxembourg in 2010. With around 90 partners and over 200 lawyers in Sydney and Melbourne, Baker & McKenzie Australia can offer you access to complex, market-leading matters working with some of the world’s best legal minds – people who know the law and who understand business. We have an unrivalled ability to provide training and secondment opportunities across our global network. Locally, we have an inclusive culture of learning, coaching and opportunity where you will work in small teams on matters that often cross borders. We value people who think ahead and get noticed.
Ready to explore our world? Natalie Pinto, Talent Management Consultant Melbourne Tel: +61 3 9617 4349 natalie.pinto@bakermckenzie.com
Posy McGrane, Talent Management Consultant Graduates Sydney Tel: +61 2 8922 5482 posy.mcgrane@bakermckenzie.com
www.bakermckenzie.com/careers Baker & McKenzie, an Australian Partnership, is a member of Baker & McKenzie International, a Swiss Verein with member law firms around the world. In accordance with the common terminology used in professional service organizations, reference to a “partner” means a person who is a partner, or equivalent, in such a law firm. Similarly, reference to an “office” means an office of any such law firm.
24 - Issue 3 2012
Clerkship Programs
Right from the start, our clerks get involved in real work. You will be exposed to our Australian and international clients through client meetings, shadowing, research and other everyday activities within your assigned practice group. Our clerks work closely with other lawyers, are guided by a Supervising Partner and enjoy the extra support of an experienced Associate ‘Buddy’. You will develop practical and legal skills through our national learning program and by attending workshops specifically designed for clerks, as well as firm-wide sessions. Clerks who accept a graduate role with the Firm are eligible to apply for an International Clerkship, with the opportunity to work for up to four weeks in one of our overseas offices in the year following their clerkship. In Melbourne, the Seasonal Clerkship programs run for four weeks in both July and December. In Sydney, the Summer Clerkship Program runs from late November to February each year with clerks completing two rotations over the 11 week period.
Graduate Programs
Our Sydney office recruits graduates directly from the Summer Clerkship pool and then on an ad hoc basis as required. Our Melbourne office participates in the priority offer system where, to be eligible for a priority offer, candidates must have completed a Seasonal Clerkship or 30 days paralegal work with the Firm during the past two years. Graduates complete three rotations over 18 months before they join a particular practice group as an Associate. You will be assigned a Supervising Partner and an Associate “Buddy” in each rotation to oversee your on-the-job and formal learning. We cover the costs of your admission and practising certificate. In addition, the Firm offers Associates the opportunity for a three month secondment to one of our Asia Pacific offices during their first two years of practice. This is a unique opportunity to experience the culture and legal work of another office, and develop contacts within the Baker & McKenzie network.
What do we look for in our clerks and graduates? Our Graduate and Clerkship programs are designed for people who enjoy a challenge and want new opportunities; who have sound academics and are practical in their approach; who like taking responsibility and getting things done; who express themselves confidently while staying open to new ideas; and who seek a friendly and inclusive culture that encourages making a difference to our local and global communities.
Application dates
Applications for clerkships should be submitted online at www.cvmail.com.au and should include a cover letter, a CV outlining work experience, extra curricular activities and interests as well as academic results. Applications for clerkships open on 13 June 2012 in Sydney and on 16 July 2012 in Melbourne.
At Baker & McKenzie we are different in the way we think, work and behave. Like no other law firm, we were born global. Right from the beginning we’ve been offering a genuinely global perspective and operating without boundaries around the world. Our established global reach offers you an extraordinary career in the global economy, exchanging rich local insights and knowledge with the best legal minds from all over the world every day. And our unrivalled regional and local development programs will make you a truly global lawyer. Fast. We’re an entrepreneurial firm where new ideas and innovation are encouraged at all levels. A place where small teams and a personal approach to your career means you can go as far and fast as your talents and drive will take you.
Issue 3 2012 - 25
A career at King & Wood Mallesons offers you both global and local opportunities, the most interesting work, the best training and all the support you need to become a great lawyer. So, if you’re smart, social and up for a challenge...
IT’S YOUR WORLD 26 - Issue 3 2012
how
not
to sue
Geelong Grammar Ellen Trevanion asks if a culture of entitlement is responsible for the Rose Ashton-Weir case.
In
May this year, law students in Australia and around the world were tantalised and titillated by the news that 18 year-old Rose Ashton-Weir was suing Geelong Grammar for failing to get her into Law at Sydney University. It sounds like the work of Oscar Wilde, complete with double-barrelled surnames, a misunderstood genius with a penchant for long words and a bad head for figures, and a chocolate fortune-cookie business supposedly worth $450,000. I, like many others, had a good giggle over it. Maybe though, instead of laughing, we should take this seriously and consider what it suggests about education and our attitudes towards it. The idea that Australians have a strong sense of entitlement has recently become something of a cliché. It may or may not apply to society at large, but cases such as Rose Ashton-Weir’s are indicative of a culture of expectation within our education system. From their first years of primary school, students are encouraged to “dream big” and they respond, claiming they want to be athletes or pop stars or Prime Ministers.
sises the importance of creating ‘self-belief ... [by] restructuring learning so as to maximise opportunities for success and addressing students’ beliefs about themselves and their academic capacities’ in its policy documents and publications. This is not problematic when a child who struggles with academics, arts or sport is comforted with the idea that they might be better at something else. The expectation that a child will be talented and that talent will be rewarded has a dramatic effect on children and parents, both positive and negative. There is, however, a point at which illusions are stripped away – namely entering the real world – and some, buoyed by an engrained sense of entitlement, struggle to accept this. The case of Rose Ashton-Weir is an extreme expression of this kind of culture. Indeed, Elizabeth Weir, her mother, describes her as a “gifted” girl who scored highly in one IQ test and claims that the school should have recognised her daughter’s talent and provided tailored assistance beyond what was received by her school-fellows.
Related to this is the mantra that everybody is uniquely talented in one area or another. The Ashton-Weirs’ suit is also indicative of The ACT Department of Education empha- a dangerous belief that spending money for
Issue 3 2012 - 27
expensive schooling at supposedly elite private schools entitles students to high scores and places at prestigious universities. Being contrary to the principles of equal opportunity and advancement, if this case were to succeed, it would support and exaggerate a system in which wealthy parents send their children to schools which channel them into highly paid professions.
these circumstances are much more likely to affect academic performance than a lack of support from the school.
The argument can be made that, since Geelong Grammar receives approximately $19,000 per student every year, students are entitled to receive a very high level of personal service and at-
Although not always this extreme, the failure to accept responsibility for poor marks is endemic in the education system. Complaints about ‘bad’ textbooks and teachers who ‘don’t understand’;
tention. But Ms Ashton-Weir does not appear to be suing for the cost of her school fees. Instead, she is claiming for the costs incurred when she moved to Sydney to finish Year 12 at TAFE.
their ambitions and strengths. They then decide to attend the university is ‘the best’, according to their highly informed friends. This seems to wahhhhhhh have been the case for Rose mummy, the bad Ashton-Weir. people didn’t let me Students at ANU Law innnn... boohooo School come wahhhhhhhhhhh from a wide range of cultures and backgrounds, some comments on assignments taken as very privileged and others less so. evidence of the teacher’s failings; even We do, however, have at least one the language surrounding reports and thing in common – we worked grades emphasises the extent to which to earn the right to study here. students refuse to realistically assess Maybe, after laughing at Rose their ability and effort. We ‘get given’ Ashton-Weir, we should think grades rather than earn them. I must about the implications of a situaplead guilty to having used this lan- tion in which the money to attend guage and most of these excuses at one private schools and file law suits, time or another. rather than ability and commitGranted, there are circumstances be- ment, decides who is given educayond a student’s control which can tional opportunities. affect performance. Yet these are chal-
Even more pervasive in our education system, though, is the refusal on the part of students to take responsibility for results. Aston-Weir reportedly stated, ‘I didn’t ever feel I was getting the support I needed to really excel’. According to her, she achieved very poor marks, including an 8/68 on one mathematics test, as a direct result of the school’s failure. Geelong Grammar, however, has reported that Ashton-Weir failed to complete assessment, didn’t go to class, was completely disorganised and was suspended on a number of occasions. It would probably be safe to say that 28 - Issue 3 2012
The results achieved by other students at Geelong Grammar, particularly the twenty five 98+ ATARs in 2011, would also suggest that other students managed to score highly despite attending a school ‘incredibly detrimental to my academic skill and development.’
lenges faced by most students. The proper response is to accept them and take personal responsibility for one’s education. Hell, start a study group or apply for leave or special consideration. Do not, as Rose Ashton-Weir has done, sue the school. The other issue raised by this case is the way in which students choose degrees, universities and careers. Perhaps unfortunately, many students make decisions based solely on possible future income and their probable tertiary entrance results rather than
Nicki’s gat her wig on... now it’s yo’ turn.
Superstar Lecturer
Elizabeth Lee
tells you how to get the perfect cut and colour for your noggin.
SO... YOU WANT TO BE ADMITTED. Four years of, arguably, the “best years of your life” (all right, three if you did the JD)…then you’ve got your PLT…and you probably don’t even want to know how big your Fee-HELP debt is. So…what’s it all for? Your big day: the day that you become admitted as a legal professional.
Step One: Master the Basics…
Enough said – you need a law degree. If you’re reading this article, you’re probably almost there.
Step Two (or in conjunction with Step One): Practice Makes…Perfect?
You’ve got to do your PLT – it doesn’t matter where you do it or who you do it through – at the end of the day, you need your practical legal training and to satisfy the Australasian Professional Legal Education Council’s competencies for admission. Do your research: whilst the re
sulting qualification may be the same, you want to make sure you enjoy and learn a lot during your PLT course – after all, this is the bridge between law student and legal professional.
Step Three: You’ve got to be good…well, at least a little…
Most jurisdictions may have slightly different requirements for admission and you should check the Rules of the jurisdiction in which you want to be admitted before making your application. But generally speaking, you need to demonstrate that you are a “fit and proper person” to be admitted as a legal professional. So…what does this mean? BE HONEST! If you were disciplined for plagiarism or any other student misconduct as a law student, disclose it. Will this have an impact on your ability to be admitted? Depending on the severity, in most cases, probably not… but if you don’t disclose it, the fact that you hid it will definitely have an impact on your eligibility for admission. What are the sorts of factors Admissions Boards across the country will take into consideration? Issue 3 2012 - 29
1. Any (mis)conduct and the seriousness of it (e.g. the Admissions Boards probably aren’t going to bat an eyelid about a few parking tickets (provided they’ve all been paid!) but they might take it a little more seriously if you’ve been convicted of drink driving a number of times); 2. How long ago the (mis)conduct occurred (e.g. was it a “slip-up” of a spirited youth and you’ve demonstrated lesson learnt by having a “clean record” for a number of years; or was it a premeditated action that is representative of your essential character?) 3. Whether or not you disclose (i.e. if in doubt, disclose it) – any (mis)conduct going to “honesty” and “trustworthiness” will definitely have a big impact on whether you are considered to be a “fit and proper” person to be admitted.
Step Four: Tick all the boxes Know your dates – not only the date of your admission ceremony but when your documents need to be filed by (remember, admissions are controlled by the Supreme Courts and they have strict cut-offs). Again, there may be slight differences depending on the jurisdiction but in most cases, you will need to file an application of some kind together with supporting documents (mostly by way of Affidavit). In some jurisdictions, the application may need to be supported by additional documents such as a police check, etc. Make sure you strictly adhere to the documentary requirements! A good tip is to file your documents early (yes, before the cut-off date) – because if your documents are requisitioned because of some minor administrative or typographical error, you need time to rectify and refile.
nice bottle of wine. Know whether you are going to swear or affirm your oath and make sure that your Affidavit is consistent with what you have decided to do.
Step Five: On the big day… Dress the part – it is a traditional and formal ceremony and the Judges will be wearing their dress robes. Be respectful of the legal profession as well as the court and wear a suit (a clean one). Be on time – Judges have vacated their mornings to sit on admission ceremonies – and admission ceremonies are on one after the other and it can be quite hectic. Make sure you get there early to meet your moving Counsel and be prepared to walk into the court when the court officer calls your name. Enjoy the ceremony – it’s short and you don’t get to play a big role but it only happens once. Listen to the Judges’ speeches, take time to enjoy the tradition and ceremony of taking that step into the legal profession and acknowledge all the hard work and commitment by your family, friends and of course, yourself. Take lots of photos – most courts will not allow you to take photos in the courthouse but there are plenty of photo opportunities outside the courts. If your moving Counsel robed up for you, get a photo with them…and send them a copy of the photo – they also like having a memento of your special day. Celebrate – most of you will have your family with you – it’s nice to show your appreciation for their support in helping you get admitted, so take them out and enjoy yourself!
Whilst most of us feel relief when we get to the adIt is also a good idea to give your PLT provider a heads up mission ceremony, don’t forget that that’s when your about your admission date as they will need to prepare a journey really starts. As a legal professional, you have letter of completion and can also help you prepare your a duty to the court and this duty comes with privileges application. and responsibilities. Know that you have become a member of a profession, which provides support and You will need to have your admission “moved” by a lawyer guidance when you need it (through the various Law who is already admitted in the jurisdiction. Most law stuSocieties across the country) but does expect from dents like to ask someone special – a family member, or you the standard of an ethical, competent and profesyour work supervisor, etc. It is a very special request and sional lawyer. most lawyers are honoured to be asked - so don’t be shy! Remember to give them plenty of notice (they’re busy, im Elizabeth Lee portant lawyers now!) and most importantly, don’t forget Lecturer – the traditional gift to give to your “moving Counsel” is a ANU Legal Workshop 30 - Issue 3 2012
Peppercorn Magazine
Issue 3
31
The Federal Law Review Katie Young The Federal Law Review is widely considered to be Australia’s premier public law journal. It publishes legal scholarship by academics, judges, and practitioners and its readership extends beyond Australia to Asia and the Pacific, North America and Europe. All articles are subjected to a rigorous process of peer review to ensure that they represent a significant contribution to existing knowledge. An additional process of editorial review, coordinated by editors and students, is designed to improve the substance and style of each article, and make it consistent with the Australian Guide to Legal Citation. Public law is a wide and diverse field, and the Federal Law Review reflects this diversity. Recent issues have included articles on constitutional debates, corporate regulation, federalism, and carbon pricing options. Sometimes, an article adds to knowledge around a particular Commonwealth legislative regime, such as telecommunications, intellectual property, migration, family law, or native title. With the growing globalisation of the field of public law, and of legal scholarship in general, the Federal Law Review covers an increasing number of international and comparative analyses. Hence, recent issues have dealt with topics such as the extraterritoriality of Australia’s law, the desirability of global administrative law, and the impact of international human rights law. For students, involvement with a law journal presents many benefits. The most important is the skill set learned through the process of editing – proof-reading, citation-sourcing and style-guiding. These skills are critical to the everyday work of legal professionals, particularly in their beginning years. Hence, whether students intend to work as a judge’s associate, in a large law firm, in a public interest organisation or as an academic or writer, the experience of student editing is invaluable. Indeed, the value of this skill set is no secret to employers: many a job interview has been spent on inquiring after it. Secondly, by reading articles, students are also provided with close access to current and developing scholarship in the field of public law, which can help directly with their own courses, research and general interest in law. Thirdly, students also form collaborative relationships with other students, as well as with authors and members of faculty.
1.
In 2012, the editors on faculty are Katie Young, Matthew Zagor, Dominique DallaPozza, Rob McLaughlin and Pauline Thai. Their areas of research encompass many fields of public law, such as constitutional law, human rights law, migration law, military law, and labour law.
Issue 3 2012 - 31
What to expect when you’re expecting.... Compulsory Course Reviews, S2. International Law
Legal Theory
International law can be a frustrating thing. It looks just like ordinary law – there are rules and case law and courts – but it functions in a different context: politics. Regulating the relations between Nation States, it really comes down to individual countries to decide which international laws they will or will not follow, so be prepared for this extra layer of uncertainty in LAWS2250. At the same time, this uncertainty means that you develop a nuanced approach to studying. As always, don’t get behind, and try to be prepared for tutes because they’re pretty great in this course. To all you IR kids out there? This course is kinda why you came to uni, so don’t even think about complaining.
Calling all Arts/Law students! This course is made for you. The perfect combination of legal thought and philosophy, Legal Theory is where you can stretch those brains, flex those analytical muscles and sprint to the head of the pack. To those of you considering a career in academia, this course can help you hugely. Looking at everyday legal issues from the point of view of deep policy and doctrine, you practice your incisive skills and develop a whole new layer to your knowledge and understanding of the law. Hot tip to those who have already done LT: sneak a little Dworkin into your other law essays and it’s HELLO Distinctionville!
ComCon
You thought I’d forgotten about you, didn’t you First Years?! Well, never fear, ‘cause Dunja is here to soothe your Contracts nerves. In fact, I’m about to tell you something that will make Contracts easier from Day 1. Ready? Here it is: a contract is just an agreement. Yup, simple as that! Sure, there are formalities – you’ll learn them in the first few weeks – but the most important thing is, if the parties don’t agree, there is no contract! (Mmmk so be careful with this as far as standard-form contracts go, and always remember the rule in L’Estrange v Graucob… but you’ll get to that.) Contract law is hugely important to know and bound to be useful to you later in life, so get your teeth into it! And go to your tutes PREPARED!
PREPARE. Do NOT get behind with this course, particularly if you’ve had trouble with public law in the past. It’s a tough one – arguably one of the hardest courses AT ANU – and can become very confusing if you let it pile up. That said, CommCon is the course where you’ll study the best, most creative and most inspirational High Court jurisprudence in existence, so enjoy it. Put the effort in at the right time and you’ll love it.
32 - Issue 3 2012
Contracts
Summer/Winter Exchange at the University of Alabama, Tuscaloosa. Madalein Tier Every summer, from early January to mid-February, the College of Law sends ten students and one lecturer over to the University of Alabama at Tuscaloosa to take two intensive courses: one, a general survey of US law, and the other, a comparative law course. The application for this program is coming up soon and I’m here to break down the pros and cons of heading to the dirty South for you.
Pros
Firstly, the courses are interesting. The survey of US law is comprised of two 1 to 1.5 hour lectures a day, each on a different topic. It gives you a chance to experience a bit of everything, without having to go into great depth. You’ll also do some interesting topics you’d otherwise never get to experience. Highlights include a lecture which can basically be summed up as, “Who would Jesus Tax?”, and a lecture on Capital Punishment by the Judge who has sentenced the most people to death in Alabama’s history. The exam, though 100%, is a series of essays similar to an Arts exam. Comparative Law is intensive, and a lot to learn in a few short weeks. However, you’ll be taught at a post-graduate standard by one of Alabama’s excellent faculty, and be sharing the class with at least a handful of Alabama students which is a great way to make friends. Important to note here is how great Alabama’s School of Law is. Students have a very familiar relationship with the faculty, the school is always teaming with students, and you’ll get a very friendly welcome from all them. Furthermore, the University itself is very different from Australian universities. It’s much bigger – like a town within itself – and has great facilities – including a huge cheap gym with a pool and indoor running track; busses which will get you everywhere; and even a taxi service that’ll pick you up from downtown in the early hours of the morning. You’ll also get to experience American college life with huge football/basketball/gymnastics meets, keg parties and lots of school pride. Other, more pragmatic, pros are that it’s a way to get 12 units (two classes) fast, allowing you to speed up progress towards graduation or lessen your load during the semester. Furthermore, if you’re concerned about honours or your general average, it’s a way to go on exchange without
conceding four whole electives without marks. As you’re technically enrolled for summer school at ANU, you’ll still receive your standard grades able to be counted towards your GPA. Finally, like all exchanges, it’s a great opportunity to travel. Nearly all students extend their stay beyond class to travel to other parts of the US. Furthermore, class is only three days a week, giving you long weekends to hire a car and drive or fly to other destinations. Favourites within driving distance include Nashville (hilarious), New Orleans (amazing) and Memphis. My cohort also took the opportunity to head to Las Vegas (tacky-fabulous) and one of our team even made their way to Mexico.
Cons
First of all, you don’t have any control of which comparative subject you’ll be doing over there – you could love it, or hate it. You should know by the time you apply, which may make you rethink your decision, but I would say it could still be worth going for the other experiences. Also of note, you’ll return home with a 6000 word essay to complete by the middle of first semester. This is an extra load on top of your other subjects and should be considered. Finally, cost is the biggest drawback. Though increasingly viable for Australians, the United States is not terribly cheap. Plane tickets that time of year are generally not discounted and will probably set you back at least $2500. On top of that, accommodation at the University does not come cheap (approx. $2000) and there are administrative costs to be paid up front (approx. $1500), on top of your HECS/HELP.
What now?
If you think you might be interested, the information night for Alabama 2013 will be on the 1st of August at 5:30pm in the Phillipa Weeks Staff Library. You’ll get to hear more about the program and even meet the some of the staff and students from Alabama who are visiting. Applications for the program will open after the meeting and priority is given who those who get their applications in first. Having said this, applications should be open at least until the 11th of August, so if you’ve missed the meeting you still may have time. Issue 3 2012 - 33
What’s Become of Caterina’s? Aman Gaur goes undercover. It will not have escaped the eye of any ANU law student that Caterina’s, the law school cafe, has not been open for business this year. It may not have been universally admired, but its convenience, especially for those craving coffee-fuelled study breaks during semester, has been sorely missed. Given the recent spate of restaurant health inspections across Canberra, Peppercorn diligently enquired with the Law Students’ Society about our local eatery. Administration VP, Eric Allilomou, found time in between his regular games of ‘kick-to-kick’ footy on the law school lawns to follow up this FOI request for his concerned constituents. Speaking exclusively to Peppercorn after “liaising” with his student representative colleagues at ANUSA and officials at the ANU Union, Mr Allillomou assuaged the faculty’s fears by stating that Caterina’s would be making a comeback in the near future. The self-proclaimed “people’s man” said that the café would be refurbished and run by the Union at an estimated cost of $100,000 over three years. In terms of its ongoing operation, Caterina’s will return in a restricted capacity, ditching its previous full service operations. Instead it will be similar to Gods HB without a kitchen and offering a simple a reheating of pre-prepared food on request. *** Postscript: No, Peppercorn Magazine has not gone into the hospitality business and those hours spent poring over size 8 font in law textbooks have not crippled your eyesight (yet), but Caterina’s has resurfaced as Café Peppercorn in Semester 2! We’re consulting our lawyers but while they complete Alex Bruce’s Restrictive Trade Practices this semester, we’re keen to hear your feedback on the newest member of the ANU Law Faculty. Post your review on our Facebook wall! 34 - Issue 3 2012
The 100% accurate guide to picking a date for law ball By JD
‘There is a simple matrix for choosing a date...’ We have all been there…at least I tell myself we have all been there…that super awkward situation where you buy 2 tickets for an event thinking that the perfect date will DEFINITELY show up! Yes we are all true romantics at heart, waiting for true love to slap us in the face. But seriously that pricey extra ticket just cost you the equivalent to 15 late night kebabs or approximately 33 God’s coffees! So for those of you who are still scouting for a date this article will give you the sufficient tools to make the right choice.
A wise man once taught me a simple matrix for choosing a date for a major event. This matrix consists of a pie chart of attributes, giving each a different percentage depending on how important each attribute was to you. I thought about what girls might consider as important attributes in a date. Although perhaps there is no universal formula, it would be fair to say that every girl has her own personal matrix, which they consider when choosing a potential date. For example some may allocate 20% to good chat and the other 80% to how good the As Law Ball is touted as ‘THE’ greatest event on date will look in a photo so that they can upload it campus, I guess we could deem it as a big event on on facey to make sure that everyone knows that they our calendar. If you aren’t a college kid or dating an can and will pull a hottie. ADFA dude then this is probably your only chance to prove to your classmates that you can simultaneously So in my attempt to make sure that everyone gets dance in heels whilst screaming the lyrics of Carly loose as a goose and has the best time at Law Ball, Rae. Suffice to say, you have a rep to uphold on this I would like to provide you with some pre-made night and you don’t want your plus one to…well…eff formulas for some of the date options you may be considering. Think LONG and HARD about what it up (essentially). you may want to COME from this date and then match below. ’
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The College Boy 60%=Fun 20%=Good Chat, 20%=Can show you the way to Moose
Oh bless. Such a good sort. These kids have no shame. They will offer you plenty of witty banter, hit the DF hard and on arrival to the event are already boozed enough to last the entire night, but don’t worry they will continue to take advantage of the open bar tab! You won’t need to baby sit them because the likelihood of them knowing someone else at the ball is high. But be wary; make sure that you explain to them that the ‘black tie’ dress code does include wearing shoes (and no, Havaianas do not count). It would also be wise to notify them beforehand that the venue will be off campus so that they have time to prepare themselves mentally before venturing out of their bubble. Your college date will kick on to the afters and be the last at the party - they may not be standing - but they will be there. If you do decide to take a college kid be ready for them to hook up with your bestie, not pay for your cab ride home and be the first to partake in a strategic vom to power through the night! But if you can over look these minor details they will most probably turn up in a decent suit and provide you with a hilarious night.
This kid knows his stuff. A Townie has all of the local knowledge, such as what temperature it will be, where the venue is and the best cab ranks in town. Whilst the chat at the table will most likely be limited to Canberra banter and heated political debate (seriously who cares if Craig Thompson is a kinky bastard?), the Townie may just be the key to something a little more long-term. They most likely still live at home which means that they will also have an ironed shirt and a dry cleaned suit. Their mum may also insist that they bring you flowers because that is what all good dates do and Canberra people are nice. This date will also know what happens in Canberra spreads in Canberra, so won’t do anything too cray cray. On this note please remember that the Townie has already used his extensive network to suss out your entire life history, they know what (and who) you did last summer. That aside, as the wise Troy Bolton once said, this could be “the start of something new”, so get on it!
The Best Friend
30%=Fun, 30%=Carefree chat, 40% Save money because not trying to impress
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The Townie
50%=Can teach you fun things about Canberra, 30%=Will make the most of the night, 20%=Dress well
Generally this would be dubbed a cop out, but it is definitely a safe option. Your best friend, whether male or female will be an easy going date. You aren’t trying to pick them up or impress them, you really don’t need to spend a bomb on the dress, blow dry or even wax (because lets be honest, you aren’t getting lucky with your BFF). If your BFF happens to be female they will understand your Hollywood tape issues and sympathise when your feet are dying from the 10-inch heels you swore were your ‘comfy’ heels. If your BFF is male they can carry your stuff and provide you with the warmth of their jacket between venues. The only concern here is that if they do not know anyone, you will need to play the small talk meet and greet game a lot during the night and practically babysit them. However, they will also probably go home with you when you want to, so you can share a cab fare. They will also hold your hair back if in a sticky situation… They will most probably provide you with an above average night. To be considered.
The Guy You Like But Aren’t Dating 100%=Hollywood Fail
So you know how those Hollywood movies tell us that no matter how crappy a boy treats you, on prom night all is forgotten and you suddenly get your fairy tale? Think again girlfriend. Generally if you are into a guy, a nice coffee date or chilled drink at Honky Tonks might be a go. If you take loverboy to an event like this, your fantasy WILL be destroyed. The fact that all of your mates have been helping you plan your ‘sexy but cute’ outfit whilst dreaming up situations of when and where you will have your first kiss just puts a lot of pressure on you and the situation. This leads to a lot of pressure on ‘something’ that has not even begun. This is never a good idea and you don’t want your Law Ball night to go to waste on sunken dreams. The most important thing is that YOU have a good night. Plus you can always invite him to the afters! If you think you can convert, go for it. But think this one through. There is great potential for tears and disaster.
Rumour has it that UC kids are hot but not the brightest of the bunch. Having only met a few, I would have to say that there is some truth to this. Offering a wide array of athletic and movement type courses, these kids will most probably be active…like ADD active. They will definitely play lots of sport and have many friends that also play sport. As ANU is the better uni, The UC Kid is also an underdog, which means that you will be automatically attracted to him (who doesn’t love an underdog!). They probably won’t be able to respond to you with witty jokes and puns, but they are definitely over enthusiastic. Their chiselled features will also look outstanding in the photos that you send home to the fam. A big bonus is that you won’t run into them on campus, which means that you can definitely get away with anything embarrassing on the night. You might even surprise yourself with this fella. Plus, us ANU kids need someone to take the plunge so that we can close this huge social divide. Taking one for the team!
The Trifecta 33.3%=Social, 33.3%=Intelligent, 33.3%=Good Looking
The UC Kid 70% = Looks, 20% = Sporting Prowess, 10% Dad said I needed a degree to take over the family business.
Say no more. If you have found yourself a trifector, you are on the money sister. This boy is marriage potential. He is a gun in the sack, dresses well, smiles when he sees a kid, plans on buying you a puppy and always says the right thing. He’s in with your friends, plays Sunday golf with your Dad and is helping your Mum research 7 generations of your family on ancestary.com. He is your ideal guy…which is why he doesn’t exist! Or if he does he is definitely gay! However, if you discover this rare species, please contact Peppercorn as a matter of urgency and let them know…his details…address and phone number.
The law ball date guide for gents 49% = looks, 51% = agrees to be your date
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Part IV Lord of the Files Meyer didn’t get study rooms. Bigger than cubicles, but not big enough to be classrooms or offices, they could accommodate six or seven students at a squeeze, like sinking ships for assessment time‘s refugees. Some feared persecution by case notes. Others fled internment in exam halls, and the hard justice of invigilators drunk on meagre power and confiscated bottles of ‚clear liquid, not opaque‘. Putting aside their histories as staunchly as they ignored course outlines, the students huddled together to foster hope. It mattered not where they came from. Having failed to navigate the seas of printed warnings and the narrow straits of shelves in the library, all had washed up in the top floor detention centre. Study room time was supposed to be a time of solidarity; a quiet vigil when ritual cans of holy Mother replaced pillars of incense, and Tim Tams melted fragrantly in place of candles. Prayers were read from summaries. Gaunt faces peered into screens and books, unblinking, in search of answers. Rin busied herself about the altar, arranging and rearranging books. Meathead, furnished with his size and animation, was serving as a back-up altar. Hans was mournful, cowed by the closest imitation of human sadness he had yet encountered. Ashton was anxious, or excited, like a child listening to an adult sermon for the first time. It was difficult to tell. Even Hadley was filling the role of a bored skeptic. Meyer alone was out of place. Like an atheist at Christmas 38 - Issue 3 2012
Blackletter: A time, he could only play along. He enjoyed the presents due for his friends‘ pious observation– blocks of chocolate, an abundance of plastic tabs and highlighters to paint his textbooks with. He stumbled through the customs surrounding gifts of notes, rarely reciprocating properly. Nevertheless, he was always invited to the more sacramental events, pitied by god-fearers who wished to save him. Nobody seemed to grasp his lack of concern about grades, or his apathy towards work in general. It wasn‘t that Meyer rebelled against the Rule of Law. He barely understood it, and he was far from brave. He simply didn‘t believe in consequences. The one thing he really believed in was the importance of the internet. It was the lifeblood of his people, and its swift return was paramount. For once, his classmates all agreed with him, but even that wasn’t enough to make him feel at home in this alien place. For all the conviction he had in his heart, which had not yet shriveled into vestigiality, Meyer doubted he could be useful here. Usefulness wasn‘t his strong suit anywhere. He resented being confined to a useful role. Wasn‘t there something fun he could do to help? Instead of paying attention, he let his mind wander. Through the window, he saw aisles of books in beaten jackets of dusty grey that was once blue, and envisioned legions of advancing waves, marching for the tyranny of distance. For
the most part, the law was salty. The tears of undergraduates were even saltier. This was an ocean of law, he observed, and it was a parched one. Obiter, obiter everywhere, and not a ratio to drink! He reclined, balancing on the back legs of his chair as he daydreamed. What if they were genuinely stranded here, in this tiny room? Meyer had often placed law school in the survival horror genre. At least, that was the way he pictured others‘ existences. Everyone else was a survivor, and he was a TV audience, comfortably seated a hundred kilometres away, where there were couches instead of conches, and no unconscionable conduct for making puns about. He had always wanted to pen an epic. Ever since he reached the pinnacle of consumerism roughly two months ago, and found that he was expected to produce things in order to enjoy an artist‘s esteem, it had been his dearest dream. In easier circumstances, in a world where he was cursed with fewer Facebook requests to respond to, he might have called his magnum opus ‚The Lord of the Files‘. That was the only parody he was capable of writing, because, if truth be told, The Lord of the Flies was the first and only book he had ever finished reading, before he outsourced that unpleasant business to Wikipedia. In his hypothetical novel, an assortment of his peers were stranded on an island of deserted jurisprudence, littered with lifeless
Legal Fiction articles and stony tomes whose meanings had long since fossilised. There, the law report pages were bleached bare, like bone-dry fragments of shell strewn up on a primeval shore– crude instruments for chipping at old faiths. When he finished his book, he hoped that his comrades would drink in its words with all the thirst of its protagonists. Alas! he thought, waving the vision away. It was not to be! He was a popular man– on the internet, anyway, which was the only place that counted. He was far too swamped to pen tales and risk disappointing his online followers. He leaned further back on his chair, teetering dangerously. Just as his satisfied smile reached breaking point, there was a snap! and he toppled over, a flailing of arms and lurid kicks. His dreams dissolved like dust expelled from a casebook. * Someone -in the tedious chaos, he had forgotten who- had given Meyer a highlighter. It wasn‘t an ordinary highlighter. It was sleek and streamlined, like a racing car full of electric yellow potential, and it had the name of a major law firm emblazoned on it. A transparent window, like a fuel meter, showed the radioactive contents where they splashed up against the side, and there was even a hidden capsule where sticky notes could ride as passengers. Meyer cherished it. First, he made it do laps around the desk, where he had built an obstacle course out of reference
By Piers Blackstone
books. Particularly distinguished pieces of graffiti marked the quarters of the circuit. Then, he pointed it at the air, doing his best impression of a magician and evoking annoyance with supernatural skill. The highlighter was like a wand for casting spells of gaudiness and vandalism. Thus, it appealed to his very nature, and represented altogether too much power for him to be trusted with. Although he wasn’t familiar with the notion that with great power comes great responsibility, he believed that there was nothing that could motivate him to consider the possibility of maybe -maybeone day doing his readings quite like this golden instrument. It was a sceptre, he decided, fit for the Lord of the Files... Before he could smirk, Rin rounded on him again, forcing him to pay attention to the conversation. The highlighter returned sadly from its flight. The discussion was about Plans of Action, which had been written in large letters on the white board. Underneath jackets and over jeans, everyone was wearing something like pyjamas. Rin had an overlarge T-shirt of the stretched, creased variety that always looks slept-in. It had ‘Student Executive’ printed on it in bold. Hans wore his equivalent of sleepwear, a loose tweed suit. Hadley wore grey track pants, although he likely owned nothing else. Meathead wore stains. Ashton was the only person who had risen to the challenge of a button-up shirt. He was
dressed like an intern in candystripes, his pockets stuffed with pens and gadgets. Perhaps he had been the donor of the highlighter. 'And what exactly is the plan of action?' he asked, screwing his face up in a futile attempt to decipher the hieroglyphs Rin had scribbled on the board. ‘'t’s pretty simple,' she explained. 'The university has shut down the entire student network. They’ve even dismantled parts of it and posted an explanation on the website.' She snorted at the implication. 'They say it‘s a cost-cutting measure. We‘re poorly invested and need to cut spending.' 'I don‘t buy that,' said Hans, who only bought bargains. 'Nor I,' Rin agreed. 'Not that it matters why they‘re doing it. This is just like closing down the Art and Music libraries, or cutting the curriculum. It‘s like when that New South Wales university started throwing out threehundred-year-old books because it couldn‘t afford the storage. Not enough people opposed those decisions. We‘ve got to stick up for this, or we‘ll lose even more ground.' 'And how are we going to do that?' Ashton groaned. Rin smiled vexatiously. 'I have a few ideas,' she admitted, 'but why don’t you ask him?' There was a collective gasp as a horrifying truth stepped through the door, smiling like a knife. Swallowing meekly, Meyer stood up for Stevie and his armful of files, and politely handed him the only highlighter. Issue 3 2012 - 39
Stuff ANU Law Students Like By Farzaneh Edraki
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The United Nations or “UN“ Law students can be divided into two categories: those who like the UN, and those who like the UN so much they nurse lofty ambitions to work for the UN. Unfortunately, while many fall into the latter category, they will never find actual employment. This will either be because they don’t realise the prerequisite of learning a UN language until after four years of studying Urdu (because it sounded cool), or because of a crippling fear of failure which prevents them from applying in the first place.* Unless they were part of Model UN as idealistic, doe-eyed high school students, not many law students know what the UN actually does. However, as established – actual knowledge of something does not preclude the law student from adopting an interest in it. Thus, like dating a science student or renewing their gym membership, law students like the idea of the UN in theory. Unless they are Melanie Poole or Melinda Taylor, most law students will never work for the UN *The crippling fear of failure will drive law students into settled, cushy jobs in the public service which are much easier to land
Michael Kirby J
Flirting with the Idea of Being a Actor/ Comedian At several stages throughout their degree, law students will flirt with the idea of resigning their studies to pursue acting/ writing/ comedic careers. This is a rite of passage for all law students, and helps to weed out Arts Students (See: Stuff Law Students Dislike) and Over-Achieving Children of Ethnic Families Who Don’t Want to Study Medicine. Law students of this persuasion will find an outlet for their “creative” side through the occasional Woroni/ Peppercorn article or Revue sketch. They will then spend more time reminiscing over their role as Law Student in Library #3 Extra in a Law Revue video than in an actual library. Not dissimilar to someone in the throes of a mid-life crisis, law students will get alternative haircuts and sexual partners, or develop a penchant for leather journals. Upon graduating, these law students will do one of two things: a) move to Melbourne to do the occasional comedy gig, or b) move to Melbourne to do the occasional comedy gig, only to return to Canberra to join the public service. At no point should you tell a law student that the chances of even marginal success in comedy are nil to slim. This will only irritate them. Luckily, law students are universally accepted as wimps, and at worst they’ll write a scathing blog post or FB status. At a safe distance from you. Using their iPad.
From first through to third year, law students exhibit a Beiber-Fever-like adoration for Justice Kirby. Most are able to name a handful of his ‘empassioned dissents‘ that they imply they have read in entirity. More likely, most have read a two page extract in the case book. Based on this detailed knowledge of his dicta, law students believe they have a comprehensive knowledge of the man and his legal philosophy, and feel justified in loudly and publically indulging in academic fan-girl-ery. Kirbyism is a form of academic shortcutting - a way to appear informed and intelligent, by piggybacking on Kirby J‘s criticism of the majority. It is highly effective and will make you appear significantly smarter than you are. By fourth or fifth year, the Kirbyism becomes inverted and law students will begin to decry Kibry J as overrated. Still having read very few of his judgements, they will now claim that Kirby‘s legal philosophy is heavy handed and toothless, and that he ‘dissents for the sake of dissenting‘. Many will find a new idol, and pretend to have read the judgements of Lord Denning (‘The Original Kirby‘), Sir Anthony Mason (‘If Kirby Were In the Majority‘) or for a select few, Cheif Justice French (‘The Conservative‘).
INSERT PHOTO OF KIRBY SHRINE
The ANU’s Kirby Shrine in the Law Common Room
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THERE’S MORE TO US Visit our Careers pages at www.freehills.com/careers/grad
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More Lecture S Bingo
A
8
B
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COM CON
s 51(i)
s 51(xxxix)
s 107
Q s 96
L
s 51(xxix)
S H
W
T
s 90
s 61
LIGHTHOUSES. LIGHTSHIPS, BEACONS AND BUOYS
EQUITY
F
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COURT OF CHANCERY
FIDUCIARY
NATIONAL HEART FOUNDATION
CERTAINTY OF ...
MAXIM
BENEFICIARY
Z E
ILLEGALITY
J
s 51(xx)
P
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TRUST DOCUMENTS
A 4
QUISTCLOSE (a.k.a ‘dafaq I just read?’)
D
G
7
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