Anu lss allens peppercorn 2014 issue 3 by Peppercorn

Allens

Peppercorn

Issue 3, 2014

The ANU Law Studentsâ&#x20AC;&#x2122; Society Quarterly Publication

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CONTENTS

You’ve worked hard. You have ambitions. You want to make your presence felt Ashurst is a premier global law firm, with premium clients, premium work and outstanding people.

Contents

Working at Ashurst will allow you to encounter a wide range of challenges, to get close to different types of business and to experience different cultures. A truly international firm where you can make your presence felt. Find out more Margot Kindley HR Relationship 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

Cause and Effect: The Legacy of Mr Fluffy BY ADAM SPENCE

Reflections on my Aurora Native Title Program Internship at AIATSIS BY JESSICA WARD

ANU Law Revue BY ERIC ALLILOMOU

Ag-gag Laws BY BEN LATHAM

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RESEARCH

CAUSE AND EFFECT: THE LEGACY OF MR FLUFFY BY ADAM SPENCE

living areas.

expanded into insulation under the name J & H Insulations.

Major admitted the evidence was not yet certain about the danger posed to the wider community from asbestos, but his cautionary message to the Department was clear – consider dissuading or even banning Jansen from using it. Warnings then, and the growing body of evidence in the years that followed on the dangers of asbestos, did nothing to dissuade authorities from allowing him and his successors to operate for another decade.

J & H rebranded ‘Asbestosfluf ’ as ‘Amoswool’, adopting advertising that was subtler and avoided reference to what the material was. To customers though, the grand claims remained unchanged; an original quotation obtained from a homeowner this year proudly described Amoswool as “completely harmless,” non-irritating and CSIRO tested. By 1975 only Joseph’s address in Weston was still associated with the business. In 1979, reflecting changes to building regulations in the ACT, the material was finally taken off the market.

For Dirk Jansen, Asbestosfluf was just another of the entrepreneurial endeavours he pursued from his luxurious home on Olympus Way in Lyons, itself insulated with Asbestosfluf. A plasterer by trade, Jansen started a company called D Jansen & Co in July 1966 with his wife Thea. Primarily working in plastering and general trades, Jansen and his “gang” as he called them, worked on projects including the Woden Plaza, Woden Valley Hospital and the Lakeside Hotel. Between 1966 and the mid 70s, he sold industrial conveyor belts, leased construction machinery and was a wholesaler of home cleaning products to retailers including David Jones.

In 1991, Dirk Jansen reflected on the legacy two generations of his family were responsible for, speaking to the Nine Network’s Richard Carlton for 60 Minutes. Asked if he regretted what he had done, he was unrepentant, uttering a single word… “why?” It was 1989; anxiety and calls for action over Jansen’s legacy were coming to a head. For the past decade, awareness had been growing about the dangerous substance now present in potentially thousands of buildings in Canberra and the region. For much of that time, the Commonwealth’s position in Canberra had been one of identification and containment.

Over many months, ANU law student and independent journalist Adam Spence has explored the dangerous five decade legacy of the enigmatic figure known as Mr Fluffy. Now with unprecedented clarity, he shares the fascinating story adapted from his article published recently in the Canberra City News, based on extensive original research now being used by law firms and media outlets.

It was in 1967 that Jansen began expanding into asbestos, becoming the ACT agent for Asbestospray Corporation of Australia. Specialising in fireproof, thermal and acoustic insulation treatments; patents suggest these products contained the same two types of amphibole asbestos, Amosite and Crocidolite, that Jansen would use a year later for insulating homes.

On a winter day, the roar of a motor and rushing air disturbs the cool calm of suburban Canberra. A man on the back of a truck cuts open a hessian sack and plunges his hand in, taking out a clump of loose, grey, fibrous material; dropping it into the beating metal blades of a hopper attached to a fan. In the roof cavity of a nearby home, another man holds a hose leading from the truck, directing a stream of the now fluffed up material across the surface of the void, creating a thick blanket that will weigh almost 120kilos. The dust permeates the air and like his colleague on the truck, he wears a mask to avoid the unpleasant irritation it causes. The mask offers little protection; the inside of it coated with the grey fibres. Neither the men, nor presumably the owners of the home, realise the danger they’re in, or the lasting legacy this material will have.

Sometime in the following months, Jansen purchased a second-hand insulation pumping truck in Sydney. In 1968, he established ‘Asbestosfluf Insulations’, a subsidiary of D Jansen & Co, employing a manager named Calder and his son Dirk Jr. to install the material. The material was usually Amosite, produced by EGNEP, the South African mining subsidiary of Britain’s Cape Mining Company, that had tellingly closed its last British asbestos factory the same year. The material was shipped in 45kilo hessian bags bearing the name EGNEP and the shipping mark of James Hardie, whose chief chemist in 1968 confirmed the product’s origin.

Observing the men are two senior officials from the ACT Health Services Branch of the Commonwealth Health Department, accompanied by a scientist named Gersh Major who is concerned by what he sees. It was July 1968. Earlier that year, an entrepreneur named Dirk Jansen launched Asbestosfluf, an insulation product he marketed to home and business owners as safe, affordable and long lasting. He went so far as to claim the CSIRO had approved it. It was in fact pure amphibole asbestos. Concerns quickly arose about Jansen’s venture, prompting the Health Department to investigate. It was at this early stage, that a dangerous and expensive five-decade legacy could have been avoided. Obtained in March this year, a report prepared for the Department by Major warned that the installers were being “unnecessarily exposed to a harmful substance” when alternatives existed. He warned that Jansen’s conduct was “against the best public health practices,” that evidence now suggested exposure to asbestos fibres in the community was undesirable and that its use should be limited to “essential” purposes only. Prophetically, Major warned that homeowners would face a potential hazard from the leakage of fibres from the roof space into

RESEARCH

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Jansen is also believed to have used Crocidolite (blue asbestos), detected during the Commonwealth’s eventual audit of Canberra homes between 1988 and 1989. A source familiar with Jansen’s legacy suggested he offered Crocidolite as a “premium” choice to customers. When and how Dirk Jansen came up with the idea to use asbestos as a loose insulation remains a mystery, one that Jansen’s family is thus far unwilling to shed light on. Did his experience with Asbestospray inspire him to experiment? An exclusive statement obtained from the British Health and Safety Executive lends credence to this idea. Did he replicate the work of other operators, whose work was forgotten by history? The 1968 report by Major reveals an operator named Bowsers Asphalt was using asbestos in much the same way as Jansen since 1955. Exclusive statements obtained from the NSW Government also reveal the existence of another operator in regional NSW in the late 1960s. Jansen’s Asbestosfluf subsidiary spent six years insulation homes in Canberra and regional NSW, chiefly Queanbeyan, Bungendore and Yass, before a new company co-owned by Joseph Jansen, believed to one of Dirk’s sons took it over. In 1972, Joseph of Buvelot St Weston, with business partner John Hetz of Duffy, established J & H Constructions. In 1973, J & H

The Department of Territories issued public warnings and offered free insulation testing to home owners from at least 1984. A manual obtained from a Commonwealth departmental archive details the advice for homes containing Asbestosfluf; warning that the fibres would infiltrate the living areas of homes through paths such as vents and lighting fixtures. Their concentration would increase over time and their presence would be stirred by every draft from a door or window. Removal, the manual warned, would usually not be feasible, with any attempts to do so increasing the contamination and being unlikely to remove all the pervasive material. Despite the advice, more than 30 home owners chose to have the asbestos removed professionally before 1989, while anecdotal reports circulated of others attempting to do it themselves. For the Commonwealth, facing a potential health crisis, mounting public pressure and uncharted legal territory, removal became an inevitability. For the agency charged with designing and implementing that removal, the Asbestos Branch, there were no ready plans, no guidelines and no examples to learn from.

investigated. This removalist argued the Asbestos Branch’s solution was too elaborate and too expensive, though he was not the only one in the community making that argument. Academics, journalists and representatives of various industry groups labeled the Branch’s plans wasteful and extravagant. Grasby, who did not respond to a request for interview for this story, and Urban Services Department managers, agreed with the critics and questioned why this asbestos removalist could clean homes for $20k when the Asbestos Branch wanted to spend triple per home, despite larger economies of scale? That this removalist used no containment structures, only rudimentary equipment, and was seen to enter roof spaces without a mask was the answer. Seeking an alternative, the Department considered the idea of demolishing affected homes, purely to save on removal costs. However the Asbestos Branch opposed this option, arguing that safe demolition would require homes be cleaned first, negating any savings. McKenry recalls the option for demolition as a solution on health and safety grounds was not considered by the Branch. The Asbestos Branch’s program eventually prevailed, but was not exclusive. Home owners, particularly those wanting urgent removal and who were not eligible for the government’s priority list, were still able to hire a licenced removalist and seek reimbursement from the government. While these contractors were meant to abide by the same standards as the public program, the Branch knew they didn’t have the capacity to do it as safely or as thoroughly. Frustrating the Branch further, they were initially prevented from any oversight of the private contractors work, the jurisdiction belonging to Building Control. Now almost fifty years since Dirk Jansen introduced Asbestosfluf, with the hazardous material still in the homes of Canberra and beyond, an end game for this legacy may be near, as individuals, community groups, experts and lawyers push to find a solution.

The Branch adapted the Worksafe removal code to this unique situation, requiring all “visible and accessible asbestos” be removed. It developed a dual encapsulation method, allowing workers to remove the material within a negative pressure environment, while protecting the work site from the elements using a robust outer shell. A PVA seal was chosen to make the the material the Branch knew would inevitably remain, as safe as possible. A group of four external health experts was consulted, three of whom supported the Branch’s solution, with the fourth feeling it went too far. This innovative solution came at a cost however, with the only local firm eligible to tender, BRS, and interstate company Gardner Perrot, the latter described by former Branch head Keith McKenry in an interview in June as “much more professional,” providing estimates between of $40k and $60k. Publically, the ACT Government signed off on the Branch’s program, yet privately there was dissent. Local asbestos removalists, lacked the skill and equipment to meet the high standard set and feared losing business. During 1989, the ACT became self-governing and new Labor Minister for Urban Services Ellnor Grasby became responsible for overseeing the Branch’s removal program. Keith McKenry recalls the Minister being influenced by the advice of one removalist in particular, whose behaviour so concerned the Asbestos Branch, it reporting his activities be

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STUDYING LAW

Reflections on my Aurora Native Title Program Internship at AIATSIS BY JESSICA WARD My internship via the Aurora Native Title Internship Program at the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) has been a rewarding learning experience. AIATSIS, which is located in Canberra on the Acton Peninsula, is a national research, collecting and publishing organisation of Aboriginal and Torres Strait Islander cultures, traditions, languages and stories. Through these functions, AIATSIS aims to affirm and raise national and international awareness about the richness and diversity of Australian Indigenous cultures and history.

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During my internship, I was placed in the Native Title Research Unit (NTRU) of AIATSIS, which is responsible for producing independent research and policy advice on native title in order to promote the recognition and protection of Aboriginal and Torres Strait Islander peoples’ native title rights and interests. My main task was to update the Native Title Information Handbook, a summary of resources and information on key areas of native title at a national, state and territory level. Although it was a challenging task, updating these resources proved to be an excellent way for me to learn about varying native title systems and processes across jurisdictions. I was given a high level of autonomy to complete this task. I was also involved in several smaller projects, including drafting case summaries and updating important summaries and statistics, which helped to extend my learning to other aspects of the NTRU’s work. My supervisor acknowledged that my work made an important contribution to the work done by AIATSIS and appreciated my commitment to the program.

The research team at AIATSIS are extremely dedicated and passionate about their work. I enjoyed hearing the researchers talk about their projects, both through presentations and in informal settings. This helped to broaden my understanding of the team’s activities and focus, and enhance my own learning on other aspects of Aboriginal and Torres Strait Islander history and cultures. I was able to build good working relationships within the NTRU and made many new friends. Completing my internship at a national institution offered opportunities to attend and participate in many interesting events. I was lucky enough to be invited to the launch of the AIATSIS 50 cent commemorative coin at Parliament House, which was also attended by Prime Minister Tony Abbott and AIATSIS Chairperson Professor Mick Dodson. My internship coincided with NAIDOC on the Peninsula, an event organised by AIATSIS to share, celebrate and acknowledge Aboriginal and Torres Strait Islander cultures, lifestyles and achievements. Another memorable experience was attending the Australian Senate Occasional Lecture Series at Parliament House to hear Professor Megan Davis give a presentation on constitutional recognition of Aboriginal and Torres Strait Islander peoples, which was very thought-provoking. My supervisor strongly encouraged me to take advantage of these extra activities, which made my internship an enjoyable experience. My Aurora internship has given me an opportunity to gain experience and insight into working in native title research and policy, which I am certain will be invaluable in my future career. For more information about the Aurora Native Title Internship Program, please visit their website (www.auroraproject.com.au).

ANU Law Revue

DO YOU HAVE WHAT IT TAKES TO BE AN EXCEPTIONAL LAWYER? It takes the curiosity to see what others can’t; the ability to cut to the heart of any matter; and the character to push further than others. This is how we bring original, unexpected perspectives to our clients’ most complex and critical matters. Bring these qualities, and we’ll offer you an environment where you can be yourself, and where you’ll be inspired and mentored by leaders in their fields. We'll reward your contribution with the responsibilities, challenges and opportunities you’d expect from a leading global law firm. We see a fascinating and exciting future for the business of global law. Do you? HERBERTSMITHFREEHILLS.COM/CAREERS

BY ERIC ALLILOMOU It was the best of times, it was the worst of times and when August dawned over the battle weary campus it was Law Revue time. Though this reporter saw the show over a month ago now, it’s a testament that all the singing, dancing and general shenanigans have lingered on in the mind so for so long. And for those punters with busy lives and dogs to feed here’s my opinion in a capsule: It was good! Read on for more. Overall we the paying public were treated to a much more family friendly evening out. The kegs of laughter were heartily tapped from a wider field of humour that was less about shock, and more about awww (misspelling intentional). Smut and offense were noticeably absent to this reporter’s satisfaction making it a more pleasant and amenable evening for all. The venue was well chosen with prime facilities for the thirsty public. The stage was big, which helped with things like visibility and seeing the actors and the lighting and sound was, as far as this reporter could tell, expertly done. The show was on the whole funny and well-constructed with no clear lows that hang around afterwards.

Beneath the skits and singing there was an unmistakable fear of the looming employment market, and the show was permeated with almost hostility towards law firms and their hiring practices. While this may be a negative, depending on your age and current employment situation, this reporter was mostly unfazed and appreciated that it at least gave some kind of theme to the show. A series of short “mini skits” of no more than a minute were deployed to admittedly mixed effect. Quality bursts of jokes about our beleaguered treasurer, the noble and hardworking Mr. Hockey, and the final mysterious minutes of PM Holt delighted the punters. Shorts skits about a pair of talking dogs and a man dressing up as a baby were unfortunately as far from the mark as Zac Dawson at the Freemantle Dockers Best and Fairest. Skits also strayed off the beaten track of traditional Revue humour, again to mixed effect. Jokes about an elderly James Bond dragged and an extended bit of a dancing Putin soared higher than the Luftwaffe over the fields of Bristol. The unquestionable highlight of the show was the appearance of a handsome and dashing ranger from Gilgandra dressing up as a dinosaur and running about the stage with great aplomb. And so while it may be too late to encourage you see, for this reporter the 2014 Law Revue was a grand old time. Your Humble and Honest Correspondent Eric Allilomou.

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OPINION

Ag-gag Laws BY BEN LATHAM

OPINION

Australian politicians and agricultural lobby groups are currently discussing the introduction of a new set of legislation, known as ‘ag-gag’ laws, which seek to censor activists’ investigations into animal abuse in factory farms and slaughterhouses. The laws are inspired by laws already enacted in several states of the United States that, under the guise of protecting the welfare of livestock, prohibit evidence of animal cruelty and malpractice being brought to the attention of the media and the general public. In Australia, undercover footage of factory farms and slaughterhouses is the primary modus operandi of activists to raise public awareness of animal abuse. Animal Liberation, for example, have exposed the horrific conditions of fifteen piggeries and led to the closure of two, including the controversial Wally’s Piggery that sparked public outrage in 2012. But although these tactics are illegal, publishing the material, at least currently, is not. As explained by Emma Davies of the Animal Defenders Office ACT, laws currently exist to protect individuals and corporations from undercover surveillance activities, but the footage, even if illegally obtained, can still be accepted as evidence in a criminal trial. “Trespassing is an offence in itself, which means entering private property without permission to record activities may attract criminal and civil liability,” Davies said. “The use and/or installation of audio or visual surveillance devices may, however, amount to an offence in itself in some jurisdictions, such as NSW, even if it does not involve trespass.” “It is also important to note that courts may permit surveillance materials to be admitted as evidence in criminal proceedings, even if it was obtained by unlawful means.” Importantly, corporations in Australia are not protected by a right to privacy. University of NSW law academic Tara Ward points to the High Court case of Lenah Game Meats Pty Limited V Australian Broadcoasting Corporation [2011]. “It is still not accepted in Australian law that a corporation can have privacy interests capable of protection. This was upheld by the High Court,” Ward explained. “Lenah Game Meats, a possum abattoir, tried to stop the ABC from broadcasting undercover footage obtained from inside its slaughtering facility. One of the arguments they tried was that broadcasting the footage would be a breach of the corporation’s right to privacy. The High Court rejected this argument.” The key feature of the ‘ag-gag’ laws being considered for exportation to Australia is the requirement that all footage of animal abuse in factory farms be turned over to police and relevant authorities within, at most, forty-eight hours. All pieces of evidence must be turned over, none of which can be given to the media or published by any other means. Western Australia Senator Chris Back is an outspoken supporter of ‘aggag’ laws and argues that the provisions allow appropriate authorities to immediately investigate breaches of conduct, instead of footage being exploited to misinform the public and fuel inflammatory campaigns. In particular, he compares activists’ tactics to withholding evidence of

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child molestation. “Any person with a keen interest in animal welfare, if they came upon information or vision that appeared to be of undue cruelty to animals, there should be no motivation for them to do anything other than present that material to authorities as quickly as possible, to have the issue addressed,” Back told The Australian Dairyfarmer last July. “It would be unacceptable to the community that any person would withhold that footage for any length of time, for whatever the purpose, before they made it public.” But US journalist and author Will Potter sees things differently. Potter specialises in animal rights and environmental movements, and presented a lecture at the ANU and around Australia throughout May to raise awareness of the danger of ‘ag-gag’ laws, using the experience of the US as a dire warning. “By eliminating that release to the media, it prevents the public and consumers from knowing what’s happening, which is the point of these ‘ag-gag’ laws,” Potter explained. “But also turning over that footage so quickly is an attempt by the industry to say an incident is just an isolated case, rather than allowing an investigation to be built over a period of weeks or months. This way, they can pretend that it’s just a few bad apples, a few bad workers, rather than taking proper responsibility.” Regardless, it’s questionable whether the relevant authorities recommended by ‘ag-gag’ laws can sufficiently prosecute the frequent animal cruelty that occurs in factory farms because it is not technically illegal if considered common practice by the industry itself. This makes undercover footage evermore important in raising awareness of these cruelties since, if not the law, public pressure is the best means of sparking much needed change within the industry. Emmanuel Giuffre, legal counsel for the animal rights organisation Voiceless, details the extensive animal abuses deemed untouchable by the law. “Much of the footage depicts standard animal husbandry practices in Australian factory farms. These include the use of battery cages, sow stalls, farrowing crates, and intensive barn operations,” Emmanuel said. “These standard procedures also include chickens having their beaks trimmed, or pigs their tails cut off, not performed by a veterinarian or with pain relief. “These practices and a raft of others are permitted by industry Codes of Practice, effectively enshrining and legalizing animal cruelty.” In the United States, the freedom of speech ensured by the first amendment of its constitution has been used as a primary legal avenue for challenging ‘ag-gag’ laws. Although Australia lacks any such federal statute, Giuffre explains that it’s debatable whether this will aid or hinder opposition to ‘ag-gag’ laws in Australia.

any legislative attempts at curtailing free speech. Similarly, the evidence suggests that countries with a Bill of Rights do not necessarily protect human rights better than those that do not,” Giuffre said. “Others would argue, however, that there are clear examples where government policy has trumped free speech in Australia. They would argue that codifying human rights is necessary to set out a set of values against which government policy can be evaluated and to encourage robust discussion and express parliamentary acknowledgement of the importance of free speech as a human right.” If ag-gag laws are introduced into Australia, however, it will be on a state and territory basis dependent on each jurisdiction’s animal welfare and surveillance regulations. On a federal level there have also been several interesting developments, including public consultation by the Australian Law Reform Commission in a review on ‘Serious Invasions of Privacy in the Digital Era’. The House of Representatives Standing Committee on Social Policy and Legal Affairs also conducted a ‘Roundtable Discussion on Drones and Privacy’ to evaluate the use of drones by civilian groups in monitoring commercial animal facilities. Ultimately, the Australian public has a fundamental right to know how the food we consume ends up on our plate, a right that is being threatened by the proposed ‘ag-gag’ laws that purposefully keep consumers unaware. While the Australian meat industry benefits from keeping consumers in the dark about what happens behind the closed doors of factory farms and slaughterhouses, in this political climate only pressure from consumers and retailers can force any meaningful change within the industry. As long as ‘ag-gag’ laws are allowed to be introduced, the public will be kept clueless and it will be business as usual and as brutal for the meat industry, profits unharmed.

“Ultimately, the Australian public has a fundamental right to know how the food we consume ends up on our plate, a right that is being threatened by the proposed ‘ag-gag’ laws that purposefully keep consumers unaware.”

“Some may argue that, in the absence of constitutional protections, Australians are more cautious of, and more likely to vehemently oppose,

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INTERNATIONAL LAW

The second comment on

Ukraine From the perspective of international law on state responsibility BY ARTHUR BI Xiao-fan (Arthur) Bi is a third year LLB student currently doing advanced international law. You can email him at U5072970@anu.edu.au.

I INTRODUCTION The recent events in Ukraine give rise to many issues of international law, including the use of force (as discussed in my article in the previous issue ), and state responsibility. This article attempts to deal with the question of Russia and/or Ukraine’s state responsibility for the crash of MH17. II THE SITUATION IN EASTERN UKRAINE LEADING UP TO THE CRASH OF MH17 A The Conflicts There has been an on-and-off conflict in eastern Ukraine since early May, in which the Ukrainian army is currently in the upper hand. Notably, it appears that Russia has recently (i.e. before the crash of MH17) strengthened its control of the separatist movement by replacing the local top leaders with Russians, and supplying more heavy armaments and Russian ‘volunteers’. According to Reuters, the new leader of the separatist movement, Antyufeyev, is a ‘professional’ pro-Russia activist, who apparently gained his ‘work experience’ in creating ‘not spontaneous at all’ pro-Russia sentiments in Transdniesteria, South Ossetia and Abkhazia. He adheres rigidly to the ‘chosen lines’, and is in regular political consultations with Moscow. B The crash of MH17 On 17th July, 2014, MH17 crashed in eastern Ukraine, killing 298 civilians, among them 27 Australians. Though an independent investigation is still in process, it seems probable that the plane was shot down by a surface-to-air missile (SAM). However, opinions are divided over the identity of the perpetrators. The West points their fingers at the Russia-backed rebels; while the Russians deny any involvement and seek to shift the blame to the Ukrainians. Since, by the time when this article was written (31st July, 2014), an independent investigation is yet to be concluded; I will use the neutral expression of ‘the Entity’ to refer to whoever that is responsible for the crash to avoid bias. III THE INTERNATIONAL LAW ON STATE RESPONSIBILITY The international law on states responsibility is set out in Articles on Responsibility of States for Internationally Wrongful Acts (hereafter: the ‘Articles’). It is adopted by a General Assembly Resolution in 2001, but has yet to become a treaty. However, this has little impact on its binding quality, because most of its provisions reflect customary international law. Two elements are necessary for establishing state responsibility: 1) an international wrongful act; and 2) the lack of any circumstance precluding wrongfulness. To establish an international wrongful act, there must be a breach of an international obligation by the defending State and the breach is attributable to that State.

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Once state responsibility is established, the defending State may rely on some circumstances to preclude the wrongfulness of its conducts. If no such circumstance could be proved at the time of the conduct, the State is liable to make full reparation. It is very unlikely that Russia or Ukraine could rely on any of the circumstances, namely: consent, self-defence, countermeasures in respect of an internationally wrongful act, force majeure, distress, necessity, and compliance with peremptory norms. Even Russia or Ukraine could rely upon one of these circumstances; the international obligation is not extinguished. Instead, Russia or Ukraine wouldn’t incur international responsibility for that breach as long as that circumstance existed. A Attribution In the present case, there are two potential paths for attribution. One characterises the event as the result of a positive act, while the other characterises the event as the result of an omission. In either way, attribution is established objectively. 1 A positive Act The crash of MH17 would be attributable to Russia if it could be sufficiently linked to Russian and Russian sovereignty; such that Russia must account for its consequences. This could happen in two ways. The first way is that if Russia explicitly adopted or acknowledged the conduct of the Entity, thus making that conduct Russia’s own. Such statements must be clear and unequivocal, in contrast to general or ambiguous statements endorsing the conduct. This is clearly not the case here, since Russia has vehemently denied any involvement with the crash. The second way is that if Russia had the entire control (or at least ‘effective control’ ) of the Entity; and can therefore be considered as having authorised the Entity’s beforehand. This is so, even when the Entity was not acting on the instruction, direction or control of Moscow when the plane crashed. Russia might be held responsible in this way on the present facts because it is more likely than not that the facts satisfy the high legal threshold for proving attribution under this path. This high threshold is reflected by the fact that mere financial and logistic support or some general authority over the entity would be insufficient. For two reasons, there could be nonetheless degree of control high enough to warrant attribution. First, in Corfu Channel case, the International Court of Justice hints at a less onerous evidential burden for the victim State in certain situations. It is held that: ‘on the other hand, the fact of this exclusive territorial control exercised by a State within its frontiers has a bearing upon the methods of proof available to establish the knowledge of that State as to such events. By reason of this exclusive control, the other State, the victim of a breach of international law, is often unable to furnish direct proof of facts giving rise to responsibility. Such a State should be

allowed a more liberal recourse to inferences of fact and circumstantial evidence’. Second, the facts suggest that, if the rebels were the entity which caused the crash, then the degree of control Russia has over the rebels probably warranted attribution. This high degree of control is reflected by the facts that, for instance, the top positions of the separatist movement were controlled by Russians who consult Moscow regularly and strictly follow Moscow’s lines. 2 An Omission The manner in which an omission is attributable largely depends on the factual circumstances. For instance, as held in Corfu Channel, an omission is attributable to Albania if there was a sufficient basis that Albania knew, or must have known, the mines in its territorial waters, and did nothing to prevent harming the interests of another State. Similarly, in the Diplomatic and Consular Staff case, the inaction is attributable because of Iran’s failure to take appropriate steps in the circumstances to protect the safety of US diplomatic and consular staff where these steps were called for. In the present case, the crash of MH17 could also be characterized as the result of Ukraine’s omission to close its airspace over rebel-held regions. It follows that, analogous to Corfu Channel, the breach could be attributable to Kiev if it could be shown that Kiev actually knew or must had known that the Entity was in possession of an SAM, which was capable of reaching the height of a commercial aircraft, and failed to close its airspace. Alternatively, it could also be argued that, analogous to Diplomatic and Consular Staff, the shooting-down of MH17 would be attributable to Ukraine, if there were some positive obligation on Ukraine to protect the safety of commercial airliners over its airspace; and the situations were such which called for Ukraine to take certain actions. B Breach 1 A positive act Following the ‘positive act’ path in attribution (see above), Russia might be liable for at least three breaches of international law. The first potential breach is arguably Art 2(4) of the UN Charter, which prohibits the use or threat of force against another nation’s territorial integrity or political independence. This is so, because, if the Entity’s conduct were attributable to Russia, then Russia would be clearly interfering with Ukraine’s territorial integrity by instructing the Entity to enter into Ukraine’s territory and shoot down a commercial airline from there. If attribution could be established, Russia might also breach the Convention on International Civil Aviation. That is because, under its most recent amendment, all States must refrain from using force against a civilian aircraft in flight. The third is a breach of certain instruments of international humanitarian law applicable to a non-international armed conflict. They protect

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INTERNATIONAL LAW

Comments on Crimea (continued) persons who take no active or direct part in hostilities or those who have ceased to do so. This is clearly applicable, since this conflict is of a non-international nature, in which the passengers on board MH17 didn’t take even the slightest part. 2 An Omission Apart from the specific obligation mentioned above (see above at III-A-2), there is also a general obligation under customary international law that Ukraine has no right to use or permit the use of its territory in such a manner as to cause injury to the territory of another. IV CONCLUSION On the limited facts currently available, there seem to be two paths in which state responsibility could be established. First, the crash could be characterized as a positive act attributable to Russia if Russia had a very high degree of control over the entity which caused the crash. Second, the crash could be characterized as an omission to Ukraine if Ukraine had a specific duty to act in the circumstances, or had failed its due diligence duty. As the blame game continues, one may recall that it is once famously said that ‘they say truth is the first casualty of war.’ ’ Hopefully this article contributes a little bit in revealing it.

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Social media defamation battle Mickle v Farley [2013] Earlier this year, a former student of a Central Western NSW high school was ordered to pay $105000 in aggravated and compensatory damages for defaming a teacher on social media. The former student made false allegations about the teacher on Twitter, which according to District Court Judge Michael Elkaim, had a “devastating” impact, forcing her to take sick leave and only return to work on a limited basis. The allegations and defamatory comments were posted on social media in November 2012, after the student had graduated from the school. It was suggested that the former student posted the comments because of a perception that the teacher had some association with his father leaving a senior position at the school. According to Judge Elkaim, “For some reason it seems that the defendant bears a grudge against the plaintiff, apparently based on a belief that she had something to do with his father leaving the school.” The outcome of this case reinforces the importance of private individuals realising that they are subject to defamation laws, through being the publishers of content via social media. It has been suggested that the former student could have avoided litigation if he had apologised and removed the harmful comments within a reasonable time period. In this circumstance, a reasonable time period would have constituted a very short period, due to the nature of the comments and the social networks the student utilised to communicate the defamatory comments. Judge Elkaim effectively articulated this point by addressing the implications of using social networks; “their evil lies in the grapevine effect that stems from the use of this type of communication.” Crosby v Kelly [2013] This is not the first time that allegations of defamation have been brought against users in the social media sphere. Former Eden-Monaro MP Dr Mike Kelly had previously been in a dispute over a comment he made on Twitter in October 2011. He was sued for defamation by Mr Lynton Crosby and Mr Mark Textor, two Liberal pollsters who Kelly accused of introducing the practice of “push polling.” According to the decision in Crosby v Kelly, this involves the process of “pretending to conduct a genuine and objective opinion poll while actually disseminating, to participants in the supposed poll, material unfairly slanted against those persons or groups to whom the conductors of the supposed poll are opposed.” In an appeal to the High Court in Kelly v Crosby in early 2013, Dr Kelly was not successful and was ordered to pay over $100 000 in legal costs. Sources: http://www.smh.com.au/technology/technology-news/thetweet-that-cost-105000-20140305-341kl.html

Victoria Legal Aid imposes further restrictions on funding for criminal appeals

Think ahead.

Melbourne Perth Sydney

The outcome of a recent review will result in Victoria Legal Aid imposing more limitations on the use of taxpayer funding for appeals. The stricter funding approval process will assist in establishing whether an appeal is adequately justified and will ensure that scare legal aid funds are used appropriately. According to the Managing Director of Victoria Legal Aid, in the past four years, the number of criminal appeals which have been funded has decreased by 30%. Source: http://www.abc.net.au/news/2014-09-11/legal-aid-to-imposetougher-restrictions-on-appeals/5736660

Reduction in local court sittings in Central Western NSW Courts in Central Western NSW are facing a reduction in sitting days because of funding issues, resulting in fewer magistrates for local courts. Sitting days at Lithgow Local Court have dropped from nine days per month to only seven and a half days per month. Other courts in the region are expected to sustain similar changes or be unaffected. An issue with this reduction concerns access to justice and whether the local community will still have adequate opportunities to access local courts. Source: http://www.abc.net.au/news/2014-09-09/attorney-general-urgesresidents-not-to-panic-about-drop-in-cou/5729148

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SATIRE

On Deregulation

BY KELLY SU

From an Alpha Centurian Perspective

Justification (If Required) for Writing on This Issue Here This issue is very dear to the wellbeing of our wallets. Now, the question “What is the wellbeing of my wallet?” may be answered in two interrelated ways: (1) Objectively, by physically measuring the weight of the object (i.e. my wallet) on a scale, and (2) Subjectively, by metaphysically measuring the weight of continuously pondering the results obtained through (1) (i.e. the weight of my wallet) upon my heart and soul. The conjunction “and” in the sentence above had greatly mystified researchers in this area (i.e. the psychological wellbeing of inanimate objects) until the publication of groundbreaking papers by a well-respected Alpha Centaurian institute devoted to investigations into the human property of common sense. After painstakingly studying data collected from a relatively large sample (such a sample took many centuries to collect, given the great scarcity of this property), the papers all reached the conclusion that there is a strong inverse relation between (1) and (2). Furthermore, throughout human history, where there is a phenomenon of (1) generally reaching a minimum and (2) generally reaching a maximum in a certain society, the society would start to do extraordinary things, one of which is simply to be transformed in a sea of misery. Given that ANU law students may very well witness this interesting phenomenon all too clearly after deregulation, we thought it might be appropriate to include the topic here, even though it is not directly related to law per se. Some Preliminary Information Before we start, if you have recently being on holiday in Alpha Centauri and is not sure what the topic of this article involves, you are welcome to first do some research. A rather succinct summary of the dominant argument in support of deregulation may be found at http://www.abc.net.au/news/2014-0730/anu-vice-chancellor-ian-young-delivers-damning-unireport-card/5635964 (We are sorry that you may not click on this link. However, if you should wish to access this and other related articles, please note that most publications on this topic are in English. Therefore, if you have immersed yourself in Alpha Centaurian on your holiday, you will now need to polish up your English. This is very important, as I am not aware of any courses in ANU that is taught in Alpha Centaurian. However, given the high quality of Alpha Centaurian scholarship, unparalleled by its Earthly counterpart in some areas, ANU may wish to consider the opportunities available in this area).

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If you are now truly concerned about this issue, and would like to see whether if it is at all possible to deduce some rational meaning from this argument, please read on (to prepare yourself for assessing the validity of the conclusions of the important papers published in Alpha Centuari). If you are not, your indifference is truly shocking and may be the first sign of depression. Please read on if you think that cynical jokes may cure you, or consult your health professional and read on after you have received treatment (to see if your money spent on treatment would be wasted anyway). We, at least, still like the idea of freedom of choice. Introduction to A Future Course Given that this is a future course, not much material on it could be gathered from the sources on Earth. Thankfully, some helpful literature is again available for us in the Alpha Centaurian Institute of Common Sense’s Archives of Future History. This document was in fact found both in the rather charming puppet theatre and the much larger but far less friendly hall devoted to accounts of fantastic ambitions. However, those of you familiar with translating from Alpha Centaurian would know that, for this document to be intelligible at all, we would more or less need to rewrite it using literary symbols familiar to the our English-speaking readers. So, let us present it as an alternative ending to Kafka’s short story: “The Truth about Sancho Panza”. Here is the other truth about Sancho Panza. After excising the demon (that became Don Quixote) that was the source of his madness, Sancho was afraid that it would return. He thus humbly asked for an island where he can philosophize alone. However, tired of this world, the demon suddenly left one morning, leaving Sancho with the lingering hallucination of the promise of possessing an island one day, in a terrible, empty world. The emptiness of lecture halls forms part of this great, empty world. Standing behind the lectern in one of these halls, Sancho speaks: “Hello and welcome to the course ______, today is __ __ ______ (of course, those of you from the past will be unable to hear these numbers, which are not translatable into the crude language that existed in substandard world before the initiation of the great deregulation that transformed all things).” “As is now customary, I shall start with the workload for this course. A timetable has been assigned to each of you, which only demands approximately 14 hours per day to be spent on

memorizing textbooks (your textbooks, mostly edited by me, of course, will be available for $500 each at the local bookstall). Given that this does not demand much of your time, you will be required, in addition, to sit two exams per week and write four reports in December, outlining in detail what you have learnt through the course of the year.” “No one is permitted to complain about the workload. The reason for this is identical to the purpose of this course. The purpose for this course (how I love making this announcement) is simply to strive for Excellence with a capital E. “What is that?”, you ask (this very question makes you sound like an ignorant being from the pre-deregulation era). Excellence is not about making the best of what we’ve got, Excellence is not about having a goal that makes life seem more livable, Excellence (and here I pause for dramatic effect) is the greatest of the great, fantastic ambitions that could, that must, be achieved in this life, on this Earth (regardless of how implausible it is and how ridiculous the means). Here I am reminded of my Master Don Quixote. Following his example, we shall say that Excellence is giving up all we have for a suit of armor and a lance (admittedly, his armor was somewhat rusty and his lance was rather blunt and many wires were needed to hold them together, but if these weapons was enough for his purpose then they should do for us) and embark on a long journey to fight shadows lurking in dark forests and giants (disguised as windmills) atop certain hills. Oh, how the arms of the giant (windmill) have stretched into the long, long columns of ranking tables. Yet, they still spin with every draft of wind and we are still thrown into the mud every time while evil knights from other continents seem to cling on. Dear Class of ____, this will not do. We must take up the arms of my Master Don Quixote and continue the battle!” “These were the dreams and ambitions of my Master Don Quixote (and how glorious the world is when seen in this light!). These we now adopt as the guiding principles of this honorable institute of higher education. Dear Class of ____, (and here I pause again so that you may prepare yourselves for my brilliant concluding statement) may these dreams never fade before your eyes, as the world without them is so clear and real, so sane and tedious and fit for nothing but eternal peace.” Note: The views in the article are those of the Alpha Centurian Institute of Common Sense only and do not necessarily reflect the views of the scribbler transcribing them or the views of Allen’s Peppercorn.

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LEGAL ADVICE

A Slice of Advice...

FROM

Doctor Dean

Dear Doctor Dean,

I’m thinking about going on exchange; do you think it’s a good idea?

I’m currently applying to a few firms looking for a job. Have you got any tips for interviews etc to see me safe above the competition?

I’m a very shy person who naturally likes to keep to themselves but I would love to make friends at Law School, can you tell me the best way to meet people?

Exchange eh? Well in Dr. Dean’s opinion, well worn as it is from years of being relentlessly bludgeoned by the Cudgel of Reality, you might need a bit of a warning. See, as soon as you get home it’s a great old excuse for the College of Arts and Social Sciences to give you a good old fashioned rogering come graduation time. Just after you’ve finished filing all your proper papers and are raising your third jug to the prospect of being free of this cesspit forever you’ll get That Email. Turns out, according to CASS, you can’t actually graduate since that course on raising dough without yeast you took in Latvia isn’t recognised as part of your degree requirements and some poor oblivious fool, usually CASS, told you otherwise. And every email volley you exchange arguing, then dealing, then begging, then offering to sell family members to the Biology School will drive from your mind that one time you almost made out with Alice from England, who may or may not have been totally into you and may or may not been over the age of 45, at that hot exchange party. Pretty soon you come to realise that really all you’ve exchanged are one set of bureaucratic nightmares for another, and these ones don’t even have the error code in English.

Let’s get right to the point. To paraphrase Sun Tzu, most interviews are won before the participants even set foot in the room. So you gotta prepare and prepare hard. What’s that? Do I mean brush up on the firm, try to anticipate some of the questions and practice your opening pitch in the mirror? Nope. All that’ll get you is a couple of obligatory handshakes and that last rejection letter you need to complete your life sized model of the Taj Mahal, made entirely of rejection letters from law firms. No, the sort of preparation you’ve got to do is called “Networking.” You’re basically going to need to find a friend within the firm of your choice and get them to lay the groundwork. They’ll spread your name around the office as a person of great skill and prowess, and put laxatives in the coffee of Grumpy Old Jeremy from HR so he doesn’t foul up the vibe of your interview by asking questions about that one P you got or demanding you bathe his wife as a form of supplication. “How do I find a friend?” I hear you calling to the heavens hoping Dr. Dean can hear you. And lo, he has! You can hide in the photocopier for a couple of weeks then burst out on a slow day claiming you’re the spirit of Officeworks made flesh, come to rid the world of bad margins and smudged ink, and hope at least one of the lawyers will think of you as some sort of divine, horribly boring messiah. Since you’ll be malnourished and hallucinating from having lived in a photocopier for two weeks you may even believe it yourself. (The advantage of this strategy is if you decide the law isn’t for you, you can easily change direction and become a successful cult leader or professional megalomaniac). The other, more mainstream, tack is to stake out the hot lawyer bars and figure out who works at the firm of your choice. Pick someone who looks approachable, friendly and yet also with that egotistical Emma-esque desire to mould someone in their own image. Then go up to them and communicate that not only are you looking to break in to the legal industry, you are also willing to demean yourself for their amusement and assimilate yourself into their psyche. They’ll take to you like a sumo wrestler would take to bacon.

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And if for some reason every prospective friend you approach is immune to your needy, sweaty charms well........I’m told the public service is a nice bland place to work.

I more than understand the temptation to sit in a nice quiet cafe sipping tea and constantly refreshing your Game of Thrones Season 5 Countdown Clock rather than doing the hard painful yards of making new friends. After all, what if they reject me and make me feel like some horrible tumour on their social life? What if they’re quiet for the funny bits of my jokes and laugh at my serious stories? What if the Blob People won and they’re just waiting for me to walk up to one of them and try to start a conversation so they can assimilate me? And I agree, all three of those would be quite terrible (except for the Blob People one. Lord Blob is both a wise and compassionate overlord).

know them. Talk to people in your lecture and people in your tutes. Sign up to do competitions and talk to the other competitors (before you crush them of course). Go to LSS events and talk to the people you find hanging out there. Talk about your life, your hobbies, your night out, your favourite TV shows, your favourite High Court case (if you have absolutely nothing else to try) and then ask them about all theirs. Before you know it, you’ll have found common ground and be chatting away over coffees and cake and bowling like nobody’s business. And yeah, you’re going to meet some assholes. Like everybody, the student body has asshole that covers about five percent of the surface area. But don’t worry about them; assholes are always at the bottom. So go make friends at law school. It’ll be the best decision you ever made.

Don’t forget that everyone else is here for the same reason you are: to get an overpriced oversold degree, and to meet the people who will make all those hours suffering through Admin lectures and slogging through exam prep bearable, or dare I even say enjoyable. If you’re anything like me when you’ve done your time here it’s going to be the lifelong friends you made here you cherish, not the rolled up piece of paper that means you apparently understand what jurisdictional error is (seriously, does anybody even know what that is?) So how to meet people and make friends? By talking to them. As sad as it makes me to say, human telepathy isn’t as mainstream as many of us hoped when we were five (and as many of us will go on hoping for right up until we’re ninety five) so you are going to have to make noise come out of your mouth to get to

Doctor Dean

BY MICHAEL QUINCEY O’NEILL

ABOUT

Doctor Dean has a PhD in Failure from the University of Misery. In 1994 he earned a Nobel Prize in Shame and has spent the last 20 years abusing his tenure at the ANU. He’s seen it all, knows all the ropes and is here to help. So why not throw him a question at lsspeppercorn@anu.edu.au.? ALLENS PEPPERCORN

REVIEWS

Sergio De la Pava’s A Naked Singularity BY MICHAEL QUINCEY O’NEILL The story of how New York Public Defender, Sergio De La Pava’s hefty debut eventually became a hit is as convoluted as the post-modern legal thriller stamped on its pages. It’s questionable wherever I can call this a new release since it was originally self-published back in 2008 during the Bush Mark II era and just on the knife edge before $50 trillion instantly vanished from the global financial markets during you know what. Yet considering it’s sudden re-emergence as an “Important Novel”, scoring a lucrative PEN prize for the best debut of 2013 and being nominated for the 2014 Folio prize, I hope I can review this book with the assumption that you are not some NY hipster who picked this up from some indie bookstore/café complex during a saunter down to the Village and am thus merely reciting well-tread gospel to you. It’s an intimidating book, not just in size but due to the sheer ambition of the author’s intent. My edition runs to 864 pages and across it’s back cover are splattered a series of blurbs which declare the thing you are holding as Dostoyevskyean, Voltairean, Joycean, and, perhaps most audaciously, even worthy of HBO. Also, it’s a pretty good yarn. This is a novel that encompasses an entire legal system, depicting a lot of New York in the process. And like the legal system the plot has a far-reaching, Leviathanesque feel to it, the vast whole somehow seamlessly connected even if on first appearances you’re left wondering what is going on and how on Earth it’s relevant to everything else. Centred around a young Public Defender of Columbian decent named Casi (Spanish for ‘almost’) the thing is chock full of characters and ideas including digressions on death, homeless chimpanzees, legendary middle-weight boxers, an obsessive perfectionist, hair cancer, a visit to a fruitthemed hotel during a reptile convention, a galvanising experiment on a rat to demonstrate the Learned Helplessness theory, a dose of quantum physics, an attempt to bring the cast of the Honeymooners to life and the ever fateful question, “How can you defend people who are guilty?”. Exhaustive but exhausting? No. DLP writes with such flair and exuberance that his prose almost flies off the page and while sometimes his novel is patchy his words are never tedious. Casi is depicted as a bit of a trailblazer, a shining young talent. He’s never lost a case and he works tirelessly for his hapless, bewildered (and often bewildering) clients. Then one day, despite his best efforts, despite getting the Law right, he loses. The System is flawed. And so begins the story of the most perfect heist in history. It feels like you’re reading David Foster Wallace and then suddenly the whole thing bucks and you find yourself immersed in a hectic legal thriller worthy of Agatha Christie and John Grisham’s demonic love-child. It’s also devastatingly funny. There’s a brilliant segment where our earnest protagonist goes on

a terrible blind date, a furiously funny story about one lawyer’s soiled underwear which is somehow smutty while scathingly clever and several surreal conversations with Casi’s neighbours about the all-encompassing dominance of the Television. And don’t even get me started on all the philosophical disquisitions which were both insightful and bizarre in equal measure. So yeah it’s good and I think you should read it. Not just because it’s intensely enjoyable but because like all Great Serious Novels of yesteryear before the Modernists turned the medium into a mere aesthetic pleasure, it is an intelligent moral tale for the twenty-first century and I think as a Law student reading this will make you a better lawyer—sort of like how some chaps thought reading Crime and Punishment would make people better Christians. It takes you through the entire process of the criminal justice system, from the origin of the crime to the final sentence, playing with its complexities, eccentricities and even its language, and every step of the way it will challenge your perceptions and question your beliefs. Just read the first chapter, the whole thing is almost just a series of dialogues as Casi guides one sorry client after another through the meatgrinder of the courts and the author takes a digression to critique the injustices of US evidence law. It’s hectic, chaotic and utterly thrilling. Don’t be intimidated by its textbook-esque size; this is an instruction manual you’ll actually want to read.

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You’ve worked hard. You have ambitions. You want to make your presence felt Ashurst is a premier global law firm, with premium clients, premium work and outstanding people. Working at Ashurst will allow you to encounter a wide range of challenges, to get close to different types of business and to experience different cultures. A truly international firm where you can make your presence felt. Find out more Margot Kindley HR Relationship 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/graduates

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