Carpe Diem 2019

Carpe Diem NOVEMBER - 2019

CONTENTS

Team Editor in Chief Matt Grice Sub-Editors Courtney van de Meer Janaya Oreb

2019 Murdoch Student Law Society ―

CARPE DIEM ACADEMIC

6

THE FRAYING OF THE GOLDEN THREAD Lorraine Finlay

30

10

NOW IS THE BEST TIME TO BE AN AFRICAN WOMAN 'YEAH NAH' Wendy Treasure

HOW TO SURVIVE LAW SCHOOL THE NIGHT BEFORE Candice Jonker

32

LAW BALL ADDRESS Michelle Harries

14

THE GLOUCESTER DECISION AND THE NSWLEC: A SHINING LIGHT FOR WESTERN AUSTRALIA? Daniel Morey

16

WINE LAW Sam Coten

18

CAN AN EMOJI EVIDENCE INTENTION? Ebonny Bell, Wendy Treasure and Marie Forsyth

STUDENT SECTION

24

MEME LAW: THE LAW OF THE FUTURE Daniel Morey

26

STUDENT WELLBEING Kerry-Lee Jacobsen

28

GETTING CAREER READY Steve Shaw

SPONSORS

36

A DAY IN THE LIFE OF A...

Jonathan Cockcroft/Anna Lee

38

RESTRUCTURING AND INSOLVENCY Jessica Antel

40

THE T-SHAPED LAWYER Lauren Ziegelaar

Editor's Note I

t is my pleasure to present Carpe Diem for 2019! This short spiel, where I get to selfishly hog the limelight (there’s got to be some editorial privileges), will mainly consist of thank yous to the many people who have contributed to Carpe this year. Firstly, I would like to thank my sub-editors, Courtney and Nay. They have put up with my panicking (an immense feat in itself) and have done so much behind the scenes-without them we would not have Carpe. I would also like to thank everyone who contributed and wrote pieces this year. Thank you for taking time out of your schedules to contribute. I’d like to particularly thank Wendy Treasure, who not only authored two articles, but has been consistently engaged with Carpe throughout the year and has been unfailingly encouraging and supportive throughout the process. I’d also like to note Daniel Morey’s contributions to the cause in writing two articles. Your articles were much appreciated, and I'm sure your predictions on the development of meme law will be widely looked upon by future academics as ahead of their time and eerily accurate.

Lastly, I would urge everyone who has managed to get to the end of my ramblings (a feat in itself) to consider contributing to Carpe next year in whatever way they can! Be it designing, editing, and writing; Carpe is a wonderful opportunity to try something new or develop your skills in a particular area.

Anyway, I'll stop now-there are much more interesting things to read in this edition. I hope everyone enjoys Carpe Diem 2019!

Matt Grice

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Academic Articles

THE FRAYING OF THE

GOLDEN THREAD ― Lorraine Finlay ―

O

ne of the first principles that any law student learns when they enrol at Law School is the presumption of innocence.

The requirement that the prosecution prove the guilt of an accused person beyond a reasonable doubt is the ‘golden thread’ always seen throughout the web of the criminal law.1 Equally important is the principle that ‘[i]t is better that ten guilty persons escape than that one innocent suffer’.2 These principles form the foundations of our criminal justice system, and are what separates a system based on the rule of law from one dictated by mob rule.

While they are foundational principles, there is nothing inevitable about them. Both in our history, and also in the present day, there are many, many examples of criminal justice systems that fall far short of this ideal.

Sadly, there are also a growing number of examples that can be seen in Western liberal democracies where these principles are being not just lightly tempered but actively trampled over, ostensibly in the pursuit of justice.

One key example of this is the #MeToo movement. To the extent that this movement has encouraged a public discussion about the boundaries of appropriate behaviour and empowered victims of sexual harassment and assault to speak out it is an important, and long overdue, development. To the extent that it has replaced evidence with allegations, and the presumption of innocence with #BelieveWomen, it risks undermining some of the key protections that are built into our criminal justice system.

1 2

This was illustrated last year by the way that allegations of sexual assault that were made against Brett Kavanaugh, following his nomination by President Trump to the U.S. Supreme Court, were dealt with. The initial allegation was made by Christine Blasey Ford, a psychology professor who claimed that Kavanaugh had attempted to rape her at a party in 1982 when they were both teenagers. The allegation became public during Kavanaugh’s confirmation hearing. The Senate Judiciary Committee scheduled an additional day of public hearings to consider the allegations, and questioned both Ford and Kavanaugh.

Nobody other than the people directly involved can ever know for certain whether these allegations are true or false. But after reading all of the publicly available documents and watching the testimony before the Committee, it is hard to avoid the conclusion that this is not a case that would ever reach the criminal standard of proving guilt beyond a reasonable doubt. It is highly unlikely that a prosecutor would ever proceed to trial with this case on the available evidence. There were significant inconsistencies in the evidence given by Ford, and the witnesses that she identified as having been present at the party in question (including one of her lifelong friends) did not corroborate her account.

During this period, a number of other allegations of sexual assault were made against Kavanaugh. The first of these was an allegation of sexual misconduct by Deborah Ramirez. It was investigated by the FBI and considered by the Committee, who concluded that there was no verifiable evidence to support it. Other

Woolmington v DPP [1935] AC 462, per Viscount Sankey.

William Blackstone, Commentaries on the Laws of England, 21st ed (1765; London: Sweet, Maxwell, Stevens and Norton, 1844), Bk IV, ch. 27, p.358.

6|7

allegations have resulted in four people being referred to the Justice Department for criminal investigation relating to the making of false allegations. None of the allegations (including the initial allegation by Christine Blasey Ford) have resulted in criminal charges being laid against Kavanaugh.

Yet, despite the fact that no criminal charges against Kavanaugh have resulted from any of these complaints, he has been forced to endure one of the most intrusive and divisive confirmation processes in history, and the very public torching of his character and reputation.

Kavanaugh described the process as ‘hell’ and a ‘calculated and orchestrated political hit’.3

In his opening statement to the Committee he said that ‘my family and my name have been totally and permanently destroyed by vicious and false additional accusations’.4 Thousands attended public rallies protesting his Supreme Court nomination, and he was (and continues to be) publicly condemned as a rapist. One member of the Committee publicly referred to him as ‘evil’.5 Those who questioned the allegations against him were also attacked, being called misogynistic, rape apologists, white supremacists and – for the females – gender traitors.

Wanting to test allegations before rushing to denounce the individual concerned as a rapist does not make you any of those things.

Quite the opposite. Careful consideration and sober reflection is precisely what these types of allegations demand. Sexual assault is obviously serious in terms of the lasting impact it has on victims. But so too are unproven allegations of sexual assault in terms of the lasting impact they have on the accused (and their families). Slogans like #BelieveWomen might be underpinned by the best of intentions, but a criminal justice system built on belief rather than evidence has more in common with the Salem Witch Trials than a modern system of criminal justice.

Amongst all of the hysteria surrounding the Kavanaugh confirmation, one event that particularly stood out to me for all the wrong reasons was Kavanaugh’s withdrawal from teaching a course that he was scheduled to take at Harvard Law School during the winter term in 2019. This followed more than 800 law school alumni signing a letter to the Dean calling for the appointment to be rescinded.

The letter called on the school to ‘send a clear message that it takes sexual violence seriously’ and stated that the allegations made against Kavanaugh ‘seriously call into question his character and morality, and

3

Transcript of Senate Judiciary Committee Hearing on the Nomination of Brett M Kavanaugh to be an Associate Justice of the Supreme Court, Day 5, Focusing on Allegations of Sexual Assault (27 September 2018).

Accessed at: <https://www.washingtonpost.com/news/national/wp/2018/09/27/kavanaugh-hearing-transcript/>.

4 5

Ibid.

Ibid.

Academic | Carpe Diem

should disqualify him from … any position of esteem’.6 The fact that law graduates would be so quick to jettison the principles of due process and the presumption of innocence is enormously concerning.

Yet this is not an isolated example. Earlier this year Harvard University (again!) announced they would not be renewing the appointments of Ronald S. Sullivan Jr and his wife, Stephanie Robinson, as Faculty Deans of Winthrop House at Harvard College. This followed online petitions by students and alumni seeking his removal and a subsequent ‘climate review’ undertaken by the College. His crime? Sullivan had earlier announced that he would be one of the defence attorneys for Hollywood producer Harvey Weinstein, who is facing numerous charges of sexual assault. The alumni petition demanded his removal on the basis that Sullivan ‘has indicated by his deeds and his words that he does not support survivors of sexual assault’,7 while the students called his role defending Weinstein as ‘not only upsetting, but deeply trauma-inducing’.8 What is upsetting to me was not the fact that Sullivan was defending Harvey Weinstein but rather that these law students and alumni showed so little understanding of due process, the presumption of innocence, the right of an accused to competent defence counsel and, perhaps most importantly, the distinction that needs to be drawn between a lawyer and their client.

actor John Jarratt following historical sexual assault charges provides another illustration of the complexities involved in striking the right balance. While his name was splashed all over the media as an accused rapist, the name of his accuser has been protected. There are obviously good reasons for this type of protection being extended to victims, but in the modern age of public trial by media (and particularly social media) the effect on the accused also deserves to be considered.

The lesson in all of this is that as lawyers and law students we should understand more than anyone the importance of due process and the presumption of innocence to our criminal justice system. These are principles that we need to be prepared to defend, especially when the latest social media pile-on is busy working itself into a frenzy. That is not to say that justice for victims is not fundamentally important, or that sexual assaults or harassment should not be unequivocally condemned. Of course both of these things are true. But equally, it is critical to realise that allegations are just that.

Trial by twitter falls well short of the minimum standards of justice that we should demand. The golden threads of our justice system are worth preserving. As lawyers, it is incumbent on us to lead by example and ensure that mob rule is never allowed to supersede the rule of law in Australia.

While these issues seem to be particularly divisive and politically charged in America, Australia is not immune. Our defamation laws may explain why there have been fewer public denunciations under the banner of #MeToo. Yet the underlying issue is the same, namely how to ensure that we treat allegations of sexual assault with appropriate gravity while not undermining the golden threads of our criminal justice system? The defamation case by Geoffrey Rush against Nationwide News is one prominent example of just how difficult this can be, with the two articles published by The Daily Telegraph alleging sexually inappropriate behaviour by Rush under the headline ‘King Leer’ being described by Justice Wigney as ‘a recklessly irresponsible piece of journalism. It is difficult to avoid the conclusion that it was calculated to damage’.9 The recent trial and acquittal of

6

HLS Alumni Letter to Dean Manning: Rescind Judge Kavanaugh’s Lecturer Appointment (28 September 2018).

Accessed at: <https://www.surveymonkey.com/r/HLSAlumniLetterKavanaugh>.

7

Harvard Alumni for the Removal of Winthrop Faculty Dean Sullivan (Change.org petition). Accessed at: <https://www.change.org/p/harvard-university-harvard-alumni-for-the-removal-of-winthrop-faculty-dean-sullivan>.

8

Students for the Removal of Winthrop Dean Sullivan (Change.org petition). Accessed at: <https://www.change. org/p/harvard-administration-students-for-the-removal-of-winthrop-dean-sullivan>.

9 8|9

Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496, at [739] per Wigney J.

e m a g The hanged. has crt of it.

Be pa hanger

sgamec #minter

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"THIS IS THE BEST TIME TO B AN AFRICAN WOMAN"

YEAH NAH ―Wendy Treasure ―

L

inkedIn is a great tool for seeing what people in other fields and industries think. One of my connections, an African woman in mining, wrote the above quote. I’m sure that for many educated and resourceful women in Africa, this is indeed the best time. But for many, many others it isn’t, hence my ‘yeah nah’ addition. There are the usual suspects in terms of reasons: lack of access to education, poverty, an expectation that they will be married and start having children in their early teens – or the alternative, a mother with several children and a dead or departed husband. I’m not an African woman though so this observation runs through MY perception of reality filter first. Beware of that and your own perception filter as you read this.

.

My particular field is mining and women in mining.

For several years I was Director of Research and Academia with International Women in Mining. I also ran a mining law and policy project in Ghana on behalf of the Australian government.

Not surprisingly, those two roles combined and I started to review mining laws across multiple African nations and write gender proactive mining laws and policies. Many mining countries in Africa have amended their mining codes in the last few years. Not surprisingly, I am often asked if there is ‘any discernible change in mining law to better support women in the mining sector? What are the prospects for future positive change?’

Ghana and South Africa have established mining industries with sufficiently large numbers of staff.

Sierra and Malawi – not so much. Kenya and Zambia more so. They have women represented across most sectors and many of those women hold leadership and professional roles. In mining, there must be a positive recognition of the value of women in technical, professional roles and as decision makers. Those countries that have enough women working in the mining industry (in academia, companies, legal, finance and technical) are also seen to have dynamic Women in Mining organisations. WIM groups are a good indicator of how receptive a country is to women working in the sector – and whether laws can be changed 10 | 11

to increase and protect women’s participation. And we do need to talk about protection! Not only in terms of occupation safety and physical equipment or practices that need to recognise the different sizes and shapes of women and their strength differences. Often the biggest risk to women’s safety is from sexual harassment and sexual violence.

Laws that provide a safe work environment for women – on a mine site, in the field, and in the office – are what women think about. It is rarely men that consider these issues because they’ve never had to face them. (If you’re a male student reading this you may be shocked to realise what you can take for granted and that your female colleagues never have.)

BE

That is what a safety precaution looks like to a man. It is not what a safety precaution looks like to a woman.

Photographs (From top to bottom): ‘Helmut’ Benito Perez, LLC and Nonkululeko Dire, BME, South Africa

Safety precautions on a mine site in Australia are highly identified and regulated so the concerns are probably pretty similar for male and female workers.

But now think about the different roles that men and women might be expected to fill on mine sites across Africa. Think about the number of women versus the number of men. Now think about the lack of awareness or indifference to the risks female mine workers might face. Yeah… now you’re starting to get it.

Is there any discernible change in mining law to better support women in the mining sector? Not really; not enough. What are the prospects for future positive change, especially within legal frameworks?

The mining sector in Africa is subject to four laws: customary law, national law, international investment arbitration, and international law. As a law student you might expect laws to protect people’s safety and promote their rights. These four laws serve very different purposes. And so the role of women in mining is still not protected or promoted nearly enough.

You might therefore ask which of these above types of law are the biggest obstacle to women’s empowerment and why?

I suspect that answer you expect is customary law, but really, it’s the lack of positive national law that is the biggest obstacle. That goes for all African countries, not just the more politically stable and economically developed. Investment recourse to international arbitration on the basis of gender discrimination is not something I’ve ever seen and I doubt that I’m likely to in the near future. Gender isn’t ordinarily the stuff of international agreements – let alone in the mining sector – but I must admit it is an intriguing idea that I will consider in future. Would an international mining company or African government be prepared to insist on a clause that set a quota of female professional and technical staff? A clause that mandated the collation and publication of data about the numbers, levels and salaries of women employed in mining companies and government mining departments? Or a clause that required the provision of safe and supportive works spaces for women? That’s a subject I might have to raise with some of the international arbitration tribunals… Feel free to write an honours thesis on the prospect.

I’ll give an example to illustrate the different ways men and women in general think about safety. The following question was put separately to male and female runners in a large Australian city: “What safety precautions do you take when you’re running?” The responses from women included: ‘I run in a group’, ‘I always tell someone what my route will be’, ‘I hold my keys so they stick out through my fingers,’ ‘I wear an earpiece and talk on the phone’, ‘I only run where I can see street lights’, ‘I only run on busy streets’, ‘I never run after work once it gets dark’.

In contrast, all the men asked struggled to come up with any precautions they took. ‘Why wouldn’t I be safe?’ was the general response. Eventually, after wracking his brain, one man said ‘I guess I’d make sure I stretched properly’.

International law itself, for the most part, does not have an impact on domestic/national mining law – UNLESS it is ratified and subsequently adopted.

There are international laws against environmental dangers and gender discrimination and slavery and using child labour, but those things still exist and occur in many, many mining jurisdictions around the world. Look at the Africa Mining Vision. (And if you don’t know what the Africa Mining Vision is then look it up.) The AMV is virtually silent on the role of women in the mining sector – and certainly not in anything other than community roles. As far as vision is concerned, I’m not seeing any. (No pun intended; well, maybe just a little one.)

Academic | Carpe Diem

Yes, customary law in some countries – and in some parts of some countries – does restrict and prohibit and dictate the roles women and girls take in society and the mining sector. But customary laws change over time as societies and its peoples’ practices also change. I can’t say that I’m aware of customary laws that actively promote the role of women to diversify their potential and opportunities, but there are certainly societies and sectors in multiple African countries that actively choose to empower women and increase their education and employment. Customary laws are a reflection of continuous beliefs and practices developed over time. They do not change rapidly, but equally, they do not stay rigid.

And therefore, it is national laws that have the greatest capacity to empower women in mining and yet so rarely do. In 2018, I launched The Treasure Laws. They were the culmination of several years of conversations across Africa and collaborations with international organisations. The Treasure Laws were developed to provide a guide to governments across Africa on the legislation and policy points that each country could introduce into their mining codes to benefit women – and in turn their economies and societies. There is no African country – including Ghana or South Africa or Kenya or even Rwanda – that sufficiently promotes and protects the right of women to work in the mining industry. Some mining codes use language that actively excludes even the possibility of a woman miner, let alone a female Minister for Mines or regional decision maker or geologist/engineer/driver.

It seems the biggest type of obstacle is national law, but it needn’t be. I think that for the most part, the mining industry and mining lawmakers have not turned their minds to women at all. They haven’t recognised that women can do many mining jobs often faster, safer and more effectively. They haven’t recognised that with changing technology, the mining roles that required physical strength and endurance now require a quick brain and light fingers. They haven’t recognised that having women in a mining workforce changes the culture and dynamic from conflict to collaboration.

Your past Editor of Carpe, Elliott Schutte, set up a website for me and between the two of us we have created an accessible home for gender proactive mining law and policy. Better mining legislation and policies will empower women. Empowered women lead to economic growth and better standards of living and healthier populations. Who doesn’t want that? The Treasure Laws list 9 policy and 5 legislation points as well as provide the background to Women in Mining groups and the panel and launch at Mining Indaba in Cape Town. It’s at http://thetreasurelaws.com/ - you’re a law student; go look at it.

The prospects for future positive change in the role of women in mining can be good. In fact, they can be better than good. And then that initial statement ‘this is the best time to be an African woman’ may well be true. I am pleased to say that my colleague at WIMSA (Women in Mining South Africa) believes we’ve come a long way in South Africa as the public, more and more companies, and the government are embracing gender diversity. My colleague at WIM Ghana says that in Ghana industry is really changing fast; some of the companies are running gender, diversity and inclusion programs on site and are 12 | 13

actively looking for female talent.

WIMSA and other WIM groups are part of a global push calling for more female board representation.

Companies and international organisations realise that there must be critical numbers of women in the board room at decision making level to provide the necessary support and ‘pipeline’ of future board members.

The recent third version of South Africa’s Mining Charter has finally recognised that women should be classified as a standalone category on quotas and not be bundled up with the youth category, as was done previously. (See my earlier comment about international agreements and quotas and arbitration...) The growth in percentage of women in mining in SA had been stagnant from 2010 to about 2016/2017 with women representing only 12% of the mining workforce. The number has now moved higher to about 17%, but WIMSA is pushing for an aspirational 50%, with an emphasis on leadership roles in the more technical aspects of the business.

No matter how aspirational the numbers are, the prospects won’t get there without leadership and strong institutional will. I would love to see an African country really rethink their mining code, rather than copy piecemeal from elsewhere. To be bold about what mining can bring to a country. To recognise that being bold about empowering women across all roles in mining can lift the economic, health, education and social levels of a country. And if a lawmaker isn’t sure where or how to start, go look at The Treasure Laws – that’s why they were drafted!

THE GLOUCEST AND THE NSW ― Daniel Morey ―

R

ecent developments in the Land and Environment Court of New South Wales have sent schockwaves across the national environment law field. In Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7, Chief Judge Brian Preston, SC, dismissed an appeal against the Minister for Planning and the Planning and Assessment Commission’s disapproval of the Rocky Hill Coal Project on the outskirts of Gloucester, New South Wales. The project’s impact on the aesthetic value and nuisance to nearby residents were all considered. However, there was one big consideration that has generated the most debate: the project’s impact on greenhouse gas emissions.

In what will likely become a key factor in future climate change litigation, His Honour found a “a causal link between the Project’s cumulative GHG emissions and climate change and its consequences” [525]. Central to Preston CJ’s reasoning were inter-generational equity concerns; that is, meeting the needs of the current generation without compromising future generations’ ability to do the same. His Honour concluded that, while the mine would provide significant economic advantages currently, “the environmental, social and economic burdens of the Project will endure not only for the life of the Project but some will continue for long after” [415]. His Honour also noted implementing the project compromised Australia’s ability to meet renewable energy targets under the Paris Agreement and Climate Change Convention [526]. Finally, Preston CJ wholeheartedly rejected the argument that the contribution to global emissions from the Project would be insignificant in the grand scheme of things. He asserted that such considerations are

14 | 15

irrelevant to an authority’s decision in relation to a specific project, and the relevant consideration is whether emissions from that specific project are unreasonable [532]-[533]. He concluded the environmental and social consequences outweigh the “uncertain” short-term economic benefits [664]-[669]. Gloucester Resources have stated they will not appeal the verdict.

It is interesting to contextualise this judgement given recent developments. The verdict came before the 2019 Federal Election, which put the environment and Australia’s energy future at the forefront of modern political discourse. Yet, it seems that certain electorates reject action on the issue, particularly in regional communities that are reliant on mining. Still, it is undeniable that future governments can no longer skirt around the issue. However, for the time-being, that proactive environmental movement will come from State governments from the Judiciary branch of government, such as the NSWLEC. Needless to say, applying this precedent to Western Australia will pose some difficulties. Western Australia relies heavily on the mining industry for employment and economic growth, and dismissing potential new projects runs counter to the State’s contemporary practices.

It seems unlikely governments in the foreseeable future will be able to see past election campaignboosting promises for more jobs and a stronger economy. But there is another major, less obvious roadblock: Western Australia’s appeals system.

TER DECISION A SHINING LIGHT FOR WLEC WESTERN AUSTRALIA? The Gloucester verdict was allowed to happen, as New South Wales grants the NSWLEC the power of merits review, “exercising the function of the consent authority” [686]. On the other hand, Western Australia is the only jurisdiction alongside the Northern Territory that lacks an independent Court or Tribunal to hear environmental matters.

Western Australian legislation distinguishes between Planning, Mining, and Environmental matters more-so than any other jurisdiction in Australia. Merits review appeals under the Planning and Development Act 2005 (WA) appear before the State Administrative Tribunal. Civil issues under the Mining Act 1978 (WA) appear in front of the Warden’s Court, but this does not include the granting of approvals and licences for such projects. Merits review appeals against Environmental Impact Assessments and approvals and environmental licences under the Environmental Protection Act 1986 (WA) are ultimately decided by the very Minister for the Environment that made the original decision. In some circumstances, the Minister themselves appoint an Appeals Committee, and the Minister must make their decision on the appeal “in accordance with” their recommendation.

In others, an Appeals Convenor is appointed, and the Minister makes a decision “having regard to” this recommendation. In both streams, the Minister has a major role to play in appeals against their own decisions.

This has resulted in significant criticism.

Commentators such as Declan Doherty compare this system to appealing “Caesar to Caesar”.

Further, Stephen Willey and Vince McMullen comment that planning and environmental matters “share an almost symbiotic relationship” and that “it seems artificial for these processes

to be distilled into separate appeal processes.”

There are major issues of jurisprudence, natural justice and procedural fairness inherent in the Ministerial Appeals system. Simply put, a Minister is highly unlikely to be able to effectively separate themselves from their own biases.

The core purpose of the Environmental Protection Act 1986 (WA) is to promote the ongoing environmental sustainability of the State. The current system is incompatible with this. There is a perception that the approval processes under the Act, including appeals, are merely boxes to tick in the forgone conclusion of receiving approval. Granted, it is not necessarily a sign of an appeal’s system’s strength that major projects are dismissed. However, the nominal amount of successful appeals gives weight to this perception. The introduction of an independent Environmental Court or granting environmental jurisdiction to the SAT as per the 2009 Jones Report recommendations, needs to be seriously considered in Western Australia.

If there were ever a time where discussions about reforming the Western Australian appeals system should lead to action, it is now. Australia is caught in a crossroads in relation to environmental and climate change litigation. The NSWLEC has put forth a bold declaration, and it is time for Western Australia and other jurisdictions to take note.

Academic | Carpe Diem

WINE

LAW

― Sam Coten― 16 | 17

T

here are a lot of parallels between the law and wine. The more you learn about wine, the more you realise you know nothing about wine. Similarly, we’re all kidding ourselves if we haven’t felt completely and utterly stupid at some point in our law degree– whether that be getting to week 13 of semester and still not knowing what a corporation is, or arriving at an exam still taking a stab in the dark as to which remedy applies under what circumstance. In many ways, both law and wine are incredibly complex. Much like a balanced bottle of French Burgundy, a balanced lawyer only becomes better with time. Source a good bottle of wine, and the good lawyer will generally not be far behind. With this in mind, we rarely consider the substantially overlooked body of law that constitutes ‘wine law.’ Conceptually, wine law is quite a foreign concept to the legal toolkit. I don’t foresee it ever comprising a part of the ‘Priestley 11’ (or at least, not for the purpose of billable hours).

Grapevine research has become an increasingly attractive facet of genomic research in recent times. The anthropological context of wine extends far beyond our general comprehension, and far beyond the boundaries of legislative regulation and trade agreement. Wine history is so beautifully complex. Wine constitutes a history that spans thousands of years. Archaeologically, the grape can be traced Back almost 8,000 years ago to Iran. From this point, cultivation spread internationally at the hands of the Catholic Church, the vintners of the Renaissance and early pioneers of other now renowned wine regions of the world such as Australia and South Africa. There was a time before tort law. There was a time before sports law. There was a time before the Napoleonic Code and a time where corporations law was but a twinkle in the law of partnership’s eyes. Yet when we look at wine on an international scale, we look to Italy and France. Italy is leading producer of wine internationally as far as volume is concerned, making 4,250,000L of wine per year (officially). This is closely followed by France with 3,670,00L of wine per year. Australia currently ranks fifth, producing 1,370,000L per year, with the United States and Spain in front. Wine has always been at the core of Mediterranean culture; so revered that it was said to be the blood of those that fought the Gods, yet consistently referred to as the nectar of the Gods.

The European Union plays a central role in the development of wine law. Much of this stems from ‘old world’ wine tradition, and particularly the common desire for traditional wine making regions to protect their products. This is where appellations of origin, indications of geographical origin or geographical indications have had a regulatory impact on allowing regions to capitalise on their heritage.

These principles fundamentally work as protections on intellectual property, with some views even suggesting this extends further into more than protection of mere personal interest, but also as a mechanism of protection over culture and tradition. Having spent more time than I’d care to admit in the Piemontese countryside, I tend to concur on the latter point. However, a substantial barrier to the effective function of geographical indications of wine is seen in the fact that it has been hard to regulate compliance internationally. This is where the Agreement on Trade-Related Aspects of Intellectual Property Rights (‘The TRIPS Agreement’) fits a practical purpose. Where European Union law can only be enforced upon member

states, the TRIPS Agreement falls under World Trade Organisation Jurisdiction. This substantially broadens its enforceability, particularly where regulation of products of European Origin such as Prosecco, Champagne and Cava are concerned. While these are not the names of the grapes, rather the names of the actual wines themselves– comprehensively, merlot is merlot, cabernet sauvignon is cabernet sauvignon, but Barolo must be made with the Nebbiolo grape. This is where wine law plays a fundamental regulatory role.

The TRIPS Agreement (the Agreement on Trade-Related Aspects of Intellectual Property Rights) articles 22, 23 and 24 concern geographical indications, with specific application also to the wine industry. There was a time (as I’m sure some will recall) where Yellowglen was colloquially referred to in Australia as ‘champagne’.

As far as geographical protection goes, the TRIPS agreement is an indescribably significant document.

Fundamentally, prior to the TRIPS agreement as it stands today, the only recognition of geographical indications existed at European Union law. This means, that only European Union member states were required to call sparkling wine Champagne when it was made under regulation in the Champagne region. In the past, this resulted in complications at the level of international wine law: how does Italy, and the prosecco producers of Valdobbiadene prevent an Australian producer such as Brown Brothers from labelling their sparkling glera wine (glera being the grape that is traditionally used to make prosecco) as prosecco? What is preventing an Australian producer from making a prosecco from sauvignon and calling it prosecco? This is where the TRIPS Agreement plays an important regulatory role in guaranteeing that your Barolo really is Barolo, whether you buy it in Perth, Piemonte or Paraguay.

Each bottle of wine is a miracle; a unique product of wine making technique, climatic influence, terrain, the precise hour in which the harvest begins, and unpredictability.

As our climate grows ever more unpredictable, and ever more diverse, grapes that thrive in cold climate (for example, Pinot Noir) are increasingly at risk.

Viticulture is extremely climactically sensitive. It has been suggested that suitability is expected to decline in traditional wine regions such as Bordeaux, Tuscany and Piemonte, but may consequently increase in higher altitude regions that are currently deemed unsuitable for viticultural endeavours. This leaves the nectar of the Gods in an unprecedented position. Naturally, humans have always had to adapt– viticulture has proven time and time again that it can adapt. But as they say, ‘no planet, no pinot.’ Wine law is in a position now that we can identify our Barolo from our Nebbiolo D’Alba. We can distinguish our Sweet Lips Moscato from our Moscato D’Asti (the former being lolly water, the latter being one of Piemonte’s geographically protected marvels). But the question remains as to how this will change. What will we do when our Barolo begins to deteriorate due to climatic fault? Will we rely on wine makers to adjust their techniques so as not to have to vacate their prized terroir? Will we rely on viticulturalists, ecologists to transplant terroir and continue the consistency of geographic indications?

Stay tuned, as we look for guidance to the wine lawyers of the decade to come.

Academic | Carpe Diem

― Ebonny Bell; Wendy Treasure; Marie Forsyth ―

CAN AN EMOJI EVIDENCE INTENTION? T

he digital images known as emoji are used by much of the world (and all Murdoch law students) as a means of non-verbal communication. Japanese artist, Shigetaka Kurita created the first emoji in 1999, and since then the numbers of emoji have increased, with 2,823 emoji currently registered in the Unicode (the standardised text across computers). They have become the next big thing with fans employing them to convey a variety of meanings; including in jest and for a giggle, injecting what is otherwise a monochrome text with tone and personality. Are they a mere digital gesture? Others utilise them for their sexual connotations. Take for instance the aubergine or the peach.

Do they innocently symbolise just fruit? Or is their use intended as a visual synonym for the nether regions or naughty bits and a more sexual suggestion?

In the age of political correctness, freedom of expression, MeToo et al, is this new means of communication liberating or louche? What of the Apple v Android Wars? A peach on a platform other than Apple depicts just that. A peach. Different devices display subtle inconsistencies, 18 | 19

despite the efforts to streamline emoji across platforms. How does one decipher the user’s intention when the emoji sent is not always the emoji received?

Despite the ambiguity surrounding the interpretation of emoji, there are a number of situations where the expressive little icons are becoming the subject of intention in legal disputes and decisions. The reality is this…Emoji Law is coming.

In the recent high-profile defamation action brought by actor, Geoffrey Rush, against the Daily Telegraph’s parent company, Justice Wigney briefly considered text correspondence from Mr Rush, focusing on the use and intention of the ‘tongue hanging out’ emoji. Specifically, had Mr Rush intended to ‘test the waters’ with the complainant with the insertion of the emoji being equated to sexually explicit material? Or was he just a technical naïf ‘of a certain age’?

Justice Wigney considered the alleged aberrant ‘tongue hanging out emoji’ in context with the text and held it did not involve any intentions

by Mr Rush to be inappropriate or infer any sexual innuendo.

When evaluating the writer’s intention behind sending the emoji, context is a critical factor to consider. A recent article suggests that the choice, sequence, and repetition of emoji, coupled with the nature of accompanying text, ‘colour’ the meaning of the received message.

Most people have experienced a text that was taken the wrong way. Would the use of emoji have conveyed the tone and therefore avoided the offence or misunderstanding? Quite possibly. An emoji adds emotional subtext to a message.

With the increasingly prolific use of emoji, Apple has upped its game to combat some of the ambiguity surrounding interpretation by including emoji definitions in its settings. This could mean that from a court’s perspective the intention of any Apple emoji can be ascertained at its creation. However, the problem with this is that many people may opt to ditch the Apple interpretation and create a whole new ‘emoji language’.

With the real potential for multiple interpretative definitions of the same emoji, how will the courts establish intention?

titled ‘My Will [insert smily face]’ was held to meet the requirements of the deceased’s intentions and constitute an informal will. Although in that dispute the presence of the emoji was not debated, existing legislation leaves this area of law open for these little symbols to be judicially considered as an informal last will and testament.

Anyone can submit a proposal to add a new emoji: the Unicode Consortium requires a prototype of the emoji, an explanation of how and why people would use it, and what its addition would mean for the greater emoji language. [Murdoch students, feel free to write a hypothetical emoji will as an example and submit it to the Consortium for consideration…]

Some judicial opinions display emoji whilst others textually describe them.

Given the display inconsistencies, is a description of the ‘tongue hanging out’ emoji sufficient or will this need to be harmonised to the image itself?

Is it reasonable or inevitable that law databases accommodate searching for emoji in court opinions? When contacted, a prominent legal database (which shall remain nameless, but is widely used by law students) stated although they are currently not looking at making graphics or PDFs searchable, they are not ruling out upgrading their current search technology if this becomes a theme in their customer feedback.

In 2017, an Israeli couple negotiating with a potential landlord was found to have acted in bad faith. Why? They failed to honour their intention to rent - after sending a swag of positive emoji (and a squirrel) suggesting their acceptance of the lease.

Contract law is one legal area where technological advances must be As we seek to supplement our written words with expression our recognised and considered. non-verbal communication via Another area of law on a collision electronic technology is increasing course with technology is Probate. exponentially. It appears clear that The various Australian Supreme the use of an emoji not only can Courts can, in some circumstances, evidence intention, but increasingly dispense with the formal will be recognised as doing so. To requirements and deem ‘...anything quote The WIRED Guide to Emoji, on which there are marks, figures, “In the future, as the world becomes symbols…having meaning for increasingly digital and increasingly persons qualified to interpret them’ to globalised, emoji will become be an informal will. With technology important tools for translation and colliding with law, can someone’s communication—a lingua franca for last text message containing their the digital age.” They are the new testamentary intentions be conveyed digital hieroglyphics. by an emoji? In Re Nichol [2017] QSC 220 [14] an informal, unsent text Academic | Carpe Diem

SENIOR MOOTING Our flagship competition, Senior Mooting, was a close competition overall.

On the evening of the Grand Final on 16 April at MinterEllison, Andy Hunter was crowned champion, with Sara Leddin coming in as runner-up.

COMPETITION WINNERS PAPER PRESENTATION Allen & Overy Paper Presentation ran again this year after a hiatus. Matt Grice took out the title in what was the last competition of the year.

JUNIOR WITNESS EXAMINATION Ashurst Junior Witness Examination was the first competition of the year that catered to our first year students. Ryan Garvey took out the title in a close competition against Mathew Glatzel on the 17 April.

20 | 21

KWM CLIENT INTERVIEW KWM Client Interview: In an entertaining grand final for all on October 21, Ally Clark and Alex Manning came out with the goods against stiff competition from Ryan Garvey and Steven Thiele.

JUNIOR NEGOTIATIONS

JUNIOR MOOT

The Junior Negotiations grand final took place at Herbert Smith Freehills on 27 June. Matthew Glatzel and Celestine Adams won on the evening against Stephanie Fragomeli and Mariah Bennett.

Steven Thiele took out the Clayton Utz Junior Moot title at the Supreme Court of Western Australia, with Megan Ogle the runner-up.

SENIOR WITNESS EXAMINATION Ashurst were also kind enough to sponsor the Senior Witness Examination competition- the first time MSLS has rebranded Trial Advocacy. Conor McCavana and Owen Wright competed in the grand final on 28 June, with the former coming out victorious.

SENIOR NEGOTIATIONS Matthew Glatzel has had a strong year of negotiating, taking out the title in the Senior competition with his partner Florian Mitteregger. Sana Pulappadi and Georgia Blampain were their competitors at the Grand Final, held at Allens.

MOVE YOUR MIND

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Be known for something more: a clarity of thought and an instinct for problem solving that can influence governments and leading businesses the world over. Join us and weâ&#x20AC;&#x2122;ll help you enrich and expand your worldview, grow your skills and influence new ways of thinking. In other words, weâ&#x20AC;&#x2122;ll help you move minds.

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CONTENTS

ARUPTATÃ&#x17D; UNKINT US

Student Articles

FEDORA WEARING IS MANDATORY

24 | 25

MEME LAW: THE LAW OF THE FUTURE

I

― daniel morey― magine it. The year is 2030. The world

population,

causing

tension

between

the

is still reeling from the fallout of the neighbouring countries. Australia has challenged Great Meme War between the United the practice in the International Court of Justice.

States and its allies and China and its allies. Disputes arising from the Meme Act are No country was safe. The world will never

heard

by

a

newly-established

Chapter

III

be the same. How has the law adapted? Meme Court. The Court is currently benched

by Chief Justice Cory Worthington. Justices Following the political agenda of close friend are referred to as “m’lady” and “bruh”, and Donald Trump, who has defied the American

fedora wearing is mandatory. Dabbing has

Constitution to be elected for a third time,

replaced

bowing

as

the

proper

formality.

Australian Prime Minister Clive Palmer has introduced extensive regulations on meme

Interestingly, new precedent from the Meme Court

usage to ensure complete control over Australian that established defences to crimes under the society. The Meme Act 2028 (Cth) introduced

Act are being tested in other jurisdictions. Legal

a number of procedures to ensure public

professionals and academics are speculating

safety in relation to memes. Every meme an

on the pending High Court verdict of a case

individual intends to publish online must be

testing the applicability of the “you know I had

submitted by the proponent in draft format to

to do it to em” defence to a federal identity theft

the Federal Meme Authority for approval. Each

trial, and just how far this defence can stretch.

meme is approved on a dank-to-stale spectrum.

Some are worried Australian culture is being This exhaustive landscape has been too much

eroded alongside the meme restrictions. What

for some people. Meme refugees are escaping was once a beloved past-time has resulted in a Australia in abundance to nearby meme havens threat to national security and peace. Further, with like New Zealand. The Labour government of

meme deficiency now a recognised condition,

New Zealand, now celebrating its fifth straight Australia is in the midst of a health crisis never electoral victory, has enacted a policy of air-

seen before. The lawyer’s role in fighting for

dropping memes into the starving Australian justice has never been more pivotal to society.

Student | Carpe Diem

STUDENT WELLBEING ― Kerry-lee jacobsen ―

26 | 27

S

tudent wellbeing is becoming an increasingly hot topic in the higher education space, yet is an area that is surprisingly under-researched in Australia. Despite this, the limited data that we do have suggest that stress and mental ill-health is on the rise among university students (National Centre of Excellence in Youth Mental Health, 2017). There has been more work done focused on specific groups however, one of which being law students. One study for example showed that 35% of Australian law students in their final year reported high or very high levels of psychological distress (2.4 times more likely than medical students), compared to 13% for the general community (Kelk, Medlow & Hickie, 2010).

In the spirit of this, I have compiled a list of study tips you can action to improve your university experience – most of which have been shared to me by your peers:

1

Organise: make a semester calendar in Week 1 with academic and personal commitments listed, and stick it somewhere visible. Uni can get overwhelming, and while it always feels like there’s more work to be done it’s also important to schedule in time for yourself before you burn out.

2

Create a study group: most students are looking for one but don’t want to initiate it, so why not you? Going through problems together means you get different ideas that So why is student wellbeing in such jeopardy? Firstly it’s you may not have thought of or noticed, and it’s also a good way important to keep in mind that university students are a hugely to vent when you get to that mid-semester slump. This is about diverse group, both within and between disciplines. Students studying smart, not hard! come into university with a range of different characteristics and backgrounds, and therefore have diverse experiences as Know the support services available to you: both academic they begin and progress throughout their studies. However, and personal. Whether it is seeing a Peer Academic there are some common stressors which students may face.

Coach, visiting the Law Library staff, having a counselling session or setting up an equity plan, these things (and more) are Some of these are individual-level factors, such as the all available to you free of charge at Murdoch. (External services management of heavy workloads (Skead & Rogers, 2014), an like Lifeline (13 11 14) are also available 24 hours.) internalised pressure to succeed, a focus on extrinsic motivations such as grades or wealth (Fields et al., 2013), and the identityGet involved outside of your studies: join a student society based challenges that can arise (Townes et al., 2011). As a like the MSLS or MCS, join a mentoring program, volunteer, Student Advisor I saw these issues with identity arise often, with etc.! There is more to you than being a student, and you many students grappling with the reality that while they may have never know what opportunities or friendships might eventuate previously been at the top of their class or career, it is no longer from getting connected with the people around you. the case at university where they are surrounded by other high achievers. From a professional identity perspective, most students Know that it's OK to take on less: if the source of your also quickly unravel the mismatch between what they thought stress is from being spread too thinly over too many areas, their course would be like (i.e. Suits or Criminal Minds) versus give yourself permission to cut something loose. Whether what the reality actually is (Townes et al., 2011). These factors this is one of your extracurriculars or dropping a unit (if able to), can wreak havoc on how students come to see themselves and it’s better to do a few things well. who they envision themselves becoming as future practitioners.

3

4

5

6 7 8

Dip your toes into the world of #Studygrams: seeing how However, many threats to student wellbeing operate outside of the organised some people are might just inspire you to do the individuals. These factors can include a lack of social connection same (or at least stop bingeing Netflix). at university (Skead & Rogers, 2014), the teaching and learning environment (Kift, 2015), the sense of academic competition Give feedback to your tutors/lecturers: if you have ideas and rankings (Field et al., 2013), the rising costs of higher for how to make a unit better share them because the education (Thornton, 2016), and difficulty balancing university staff want to know! Units do change in response to your study with other commitments (Bergin & Pakenham). The phrase feedback, so you can positively influence that.

‘I don’t have enough time for X, Y, Z’ was one I heard a lot, with students attempting to take on an ever-increasing workload Reflect and reassess: there is a difference between doing to do more and be better all the while tip-toeing dangerously a course which is difficult yet satisfying, and doing a close to the edge of complete burnout. Stigma around mental course which is making you miserable. If the latter applies health has also been found to be problematic among lawyers in the profession (Crowley-Cyr, 2014), which can be mirrored to you, there is no shame in transferring to something else. in law school with students being reluctant to seek help.

University really is an amazing journey, despite how impossible it To the students reading this, clearly there are many competing sometimes seems. Work hard but don’t burn yourself out, use any pressures on you today (many of which are operating outside of setbacks as motivation to keep improving, and remember that your direct control). Despite this, I now want to remind you of the university is a marathon not a sprint. And don’t panic! We all get incredible strengths that each of you bring to the table. You have self-doubt sometimes but we’ve got faith in you all earned your place at university for a reason, and it has been so rewarding for me to watch you keep growing and surmounting the challenges of university study. If you have ever felt overwhelmed by it all you are definitely not alone! We all drop the ball sometimes.

Bergin, A., & Pakenham, K. (2015). Law student stress: Relationships between academic demands, social isolation, career pressure, Study/Life imbalance and adjustment outcomes in law students.

Psychiatry, Psychology and Law, 22(3), 388-406. doi: 10.1080/13218719.2014.960026 Crowley-Cyr, L. (2014). Promoting mental wellbeing in law students: Breaking-down stigma & building bridges with peers and support services in the online learning environment. QUT Law Review, 14(1) doi: 10.5204/qutlr.v14i1.529 Kearney, J., Stanley, G., & Blackberry, G. (2018). Interpreting the first-year experience of a non-traditional student: A case study. Student Success, 9(3), 13-23. doi: 10.5204/ssj.v9i3.463 Kift, S. (2015). A decade of transition pedagogy: A quantum leap in conceptualising the first year experience. HERDSA Review of Higher Education, 2, 51-86. Retrieved from http://www.herdsa.org.au/ Skead, N., & Rogers, S. L. (2014). Stress, anxiety and depression in law students: How student behaviours affect student wellbeing. Monash University Law Review, 40(2), 564-587. Retrieved from https://www.monash.edu/law/news-and-events/publications/monlr Townes O'Brien, M., Tang, S., & Hall, K. (2011). No time to lose: Negative impact on law student wellbeing may begin in year one. The International Journal of the First Year in Higher Education, 2(2), 49-60. doi: 10.5204/intjfyhe.v2i2.84 Thornton, M. (2016). Law student wellbeing : A neoliberal conundrum. Australian Universities' Review, 58(2), 42-50. Retrieved from https://www.aur.org.au/

GETTING CAREER READY ― STEVE SHAW ―

28 | 29

I

have been teaching in the law school since the year 2000; full time since 2004. Over the years, I have seen the job market for law grads contract and I have seen firsthand the anxiety and stress that causes law students. Law is a long and difficult course of study, and to do all the work required under the shadow of ‘will I be good enough to get a job’ can be debilitating. Over the years I have worked at Murdoch I have seen the levels of anxiety among our students become a major mental health issue. That anxiety seems to stem largely from fear of not getting a job.

Getting career ready, or at least employable, takes more than just applying for clerkships on the strength of your (hopefully decent) grades in your last or second last year.

In terms of getting those decent grades there are the obvious coursework related things that you can do. Really obvious things, such as go to class, prepare for and attend tutes, approach your lecturers with questions if you don’t understand the materials, do your readings, that sort of stuff. Sounds condescending, but with attendance rates at around 40% it seems a lot of people are not even doing the basic things required (I say this acknowledging that many of our students work jobs and cannot attend lectures but knowing that the missing 60% are not all made up of them). You will get from your law degree in proportion to what you put into it, so if you just cruise through don’t expect much payoff.

Join the Law Society, attend legal functions. Do the things that make you an involved and well-rounded person; don’t just be a law student. Start seeing your law degree as just a part of a holistic approach to getting a job when you graduate.

Easy things to say and do-able for those of you who are straight from high school. Murdoch does have an older law cohort, people with full time jobs, partners, children, and very full lives.

If you are one of that group, I understand that all the things I suggest above might not be things you have time to fit into you lives. You need to think about your life experience and skills and how they will help you find employment. A lot of you have work experience that may provide a very useful foundation for a legal career. Think about what and who you know and how that knowledge can be leveraged. Seek people out in the legal end of your former career and ask for advice and help. My experience is that most people love being able to help, and the person who advises and helps you will have a personal stake in your future success. Get out there, make contacts.

I want to finish by going back to where I started. I have seen a real increase in ‘unwellness’ among our students, unwellness that is directly due to stress and anxiety. Students are suffering from decreased quality of life and injury to their potential because of that unwellness. If that is you, don’t just live with it.

Seek help! The law school, in conjunction with the counselling services, is looking at introducing modules on dealing with anxiety and perfectionism. If those issues are a problem for Those things are study and grade related and doing them will you do the things that will help you contain and deal with them. provide a foundation for later employment. But doing them And while I don’t have a magic wand, if you are struggling come is not enough. It really surprises me is that many students, and talk to me about it. I may be able to point you towards help. despite being worried about their futures, do not do anything outside their studies that is aimed at getting them into their CASE IN POINT [2 AUGUST 2019]. careers until very late in their study program. Sure, most law firms are not too keen on giving work to even first or second s Tania Jeyamohan, a senior solicitor with the SSO, year student; why would they be? There are still lots of things has agreed to teach the unit Construction Law for us you can do besides clerkships that will make you more this semester. I gather thirty people enrolled. employable.

Tania is a Murdoch grad, and now very senior in her role.

Older students understand that who you know often trumps Construction law is a very nice little niche, no shortage of what you know in terms of getting what you want out of life. interesting work and a strong demand for lawyers with expertise This is as much true for getting a law job as it is for anything in the area. I am told that Tania expects to have a couple of else. Younger students just do not seem to figure this out. They guest lecturers from the industry. The construction law unit go through their degrees working hard, or not as the case may is a great chance for students to differentiate themselves and be, but they don’t do much else, and they don’t seem to realise increase their employ-ability. As well giving students a chance that a law firm hires people, not law degrees. Having an LLB, to gain useful substantive knowledge the unit also provides a even an LLB with a good transcript, just does not make you networking opportunity. Students can make connections with that competitive in a saturated market. lawyers in a specialized area of law, lawyers who may either need to hire people or know who is hiring.

So, what can you do to make yourself more employable? The basic answer is ‘get out there’. Do things. Meet people in the Attendance at the first lecture was 3. Go figure! To you three, industry. Do as many competitions as you can, get involved in go for it, make the most of the unit and the opportunities it MSLS, volunteer to help run competitions, have strong not-law presents. interests. If you don’t have a part time job (I know most of you do have one) get one, preferably in something related to law.

M

Student | Carpe Diem

―

Candice Jonker―

HOW TO SURVIVE LAW SCHOOL THE NIGHT BEFORE!

30 | 31

Just FYI - I totally wrote this the night before submission

Y

ou can’t do your assignment the night before. We hear it every first lecture of every unit. Then we hit units like Property and Admin and Cons and realise – ‘yup, we can’t learn this overnight’. Well … some of us anyway.

I am proud to say that not only did I survive law school, but I did it the night before.

The start of every semester comes around and I vow to set a study goal, I do my calendar, I set a schedule for my assignments and then BAM its due tomorrow at 12 and I’m starting it at 5pm.

I’ve completed all but one assignment the night before (and I might add – that Torts assignment was a 50% and my lowest score ever!).

I scored some HD’s and some C’s but maintained my D average across all my assignments, so it worked for me.

BUT!! And I can’t say this strongly enough, it doesn’t work for everyone and it’s the most stressful night of your life. It’s not something I would encourage but hey, stuff happens right? So, here’s my tips, from a chronic procrastinator, if by some chance you find yourself at 2pm staring down the barrel of that family law assignment figuring out where to start before its due tomorrow.

1 2 3

Coffee! Coffee! And more Coffee!! Instant, sachet, pods, intravenous – whatever works for you!

Lower your expectations – you will struggle to get a HD the night before, there’s just not enough time. Accept it and move on.

Technology – have a tablet, your phone, your laptop and desktop all going at once – you can have your articles on one, researching on another and writing on the other.

Don’t try to flick back and forth between tabs, you will get lost. Save all your articles/legislation/ cases in a folder – even if you’re not sure you will use them. Keep a word document with the links to all of them so you can find them again later.

Turn off notifications – Facebook will end you.

4 5

Coffee!!!

Have a clear workspace and everything handy, you don't have time to look for things. Pre-plan what text books, legislation and lecture notes you need at arm's length.

6

Pre-research if you can. I didn’t do this much and the lower grades, are the ones where I didn’t. Learn to filter and scan read.

You don’t always need 50 different sources if 10 sources will do. Find two or three good sources that support your argument and then the ones that argue against it. Use your authorities and work from there. The starting point is the text books – they have all the cases you need to get started.

Take a session with the Law Librarian – this is the most valuable tool in law school, knowing how to filter and find stuff.

7

Did I mention coffee????

8

Have a support network who is accepting that it will take 3 days to recoup, bring you food, not talk to you, maintain the house temperature and bring you coffee. Also, a study support network who is willing to take the 1 am phone call when you need reassurance you haven’t gone totally off track.

9

Reference as you go. Have a bibliography page or add in your footnotes as you go, you can not do this effectively when you have 30 minutes until submission, and you have been awake all night. Buy your AGLC and have it hard copy – tab that baby up. When referencing, do full citations and then highlight it every time you repeat it. That way when you want to ibid or above n – you can look for the highlighted footnotes.

Do it properly, you need every mark you can and 5 marks for referencing is a silly throw away. On this note, have a good editing program handy – Grammarly is a great 4am sentence checker (because nothing good happens at 4am).

10

Lastly and most importantly – just write!

Get your headings done, determine your argument and just write the damn thing! You can fix it up at the end, you can rework and reorganise your sentences, you can change/ add/delete/edit your words/references/titles and adjust your word count but only when there are words to edit.

Now, as I say this, every single one of my lecturers is cringing for sure. Some of you are thinking ‘Dear God, I could never’ and others ‘well that’s a relief’ but ultimately this exercise is not for the faint hearted. It’s intense and it’s stressful and highly not recommended. But if you find yourself in this situation – stay calm, you’ve got this.

Student | Carpe DIem

The following article is a transcript of the address Michelle Harries gave at the 2019 College of Law MSLS Law Ball

STUDENT LIFE, SOCIAL LIFE, WORKING LIFE ― Michelle harries ―

T

hank you to Daniel [Baker] and the Murdoch Student Law Society for giving me the opportunity to come and speak to you this evening.

The College of Law is a proud sponsor of this event. I am personally very excited to be here. Being a mum of two school age children I don’t get these opportunities very often and my last Law School ball was in the mid 1990’s.

I have two goals tonight, and I hope you will be pleased to know they are: to say something useful and do it quickly so that you can get on an enjoy your evening.

I read an article in the Sydney Herald last week about how the university experience has changed since I was there in the 1990’s.

The story is about a bar on campus, the Manning Bar. But really the story represents so much more.So this bar, the Manning Bar, was apparently a thriving venue in the 1990’s. They used to run a lunch time theatre sports session and many of today’s well known comedians and TV personalities cut their teeth there. Like Adam Spencer, Tom Gleeson and Andrew O’Keefe.

The sad story of this bar is that noone goes to it anymore and it has just been moved to smaller premises.

The interesting part to the story is what the demise of the Manning Bar is said to represent about student life in 2019.

While students still crave social as well as academic learning it is said that for modern students this is much harder to achieve.

As degrees become more common (in 1996, only 16 per cent of 25- to 34-year-olds had a university qualification; in 2018, that had jumped to 40 per cent) their value in the job market has decreased, so students have to work harder to stand out. This fact, together with online learning options, mean that students use their time more purposefully.

At the other end of your degrees, that is, once you graduate is usually when I really get to see you. I have also seen law graduates in my work as a WA legal practitioner of 20 years and I have also being on many panels responsible for the employment of new grads.

I have noticed the outcome of what the demise of the Manning Bar represents. As graduates you are impressive. You may not know this, and you may not appreciate just quite how impressive you are. The profession has noticed. The College has noticed.

Photo credit: Three Lions Photography

A

t the Law Society’s Welcome to the Profession Breakfast last year, our state’s Chief Justice Quinlan SC commented on how impressive new lawyers are.

The lawyer’s of the 1990’s and earlier are likely to be your future employers. The work you put into achieving good grades is something we understand and we also tried to achieve. But as a group we were more likely to spend our summer holidays at the beach than overseas doing humanitarian work. We were more likely to do a few clerkships over the course of our degree, than to work part time as a paralegal throughout our degree.

We were more likely to spend afternoons at our version of the Manning Bar, than at home pausing and replaying our recorded lectures.

But to be fair recorded lectures didn’t exist in our day.

So although you are no doubt worried about what the future holds for you in the profession and undoubtedly you are in a competitive environment, the starting point is that you are impressive.

Having walked the road that you are about to travel, what can I tell you about the legal profession?

We are ordinary people with ordinary lives.

If you think about what might be important to you as a human being and then translate that into the workplace it’s a useful thing to do. What I have come to realise is that no matter what aspect of my life, whether it is at work, at the doctor, driving my car, attending a children’s sport match, I want to be around people who are uplifting, easy going, and generally nice to be around.

The practice of law is no different.

On an interview panel we look at the CV’s of many impressive grads just like you. If you get an interview mostly what we are doing is seeing whether you would be a good fit. A large component of that is – is this somebody that I would like to work with?

Find yourself a mentor. A mentor is somebody you can talk to and seek guidance from about work related issues, including ethical questions. Ideally, this should be a person in the profession and possibly outside of your workplace.

If you are interested in litigation, remember the facts come before the law. You of course need to know the law that applies to your case, but that is a given. The art of persuasion is about how well you know and present the facts.

Lastly, work hard to find balance. The legal profession is a competitive, win-lose environment. We all lose cases. We can do the best job ever and lose because our case wasn’t the stronger one. Equally we can do a job that is less than our best and end up winning because our case was the stronger one. Always, always remember this. Be kind to yourself, don’t judge yourself by a win or a loss, and strive to achieve balance. You can start small. Fit something in each week that is just for you, your love, your passion – walking on a beach, playing a sport, having dinner with friends, going to church, reading a book – whatever it is, only you know for yourself, make a promise to yourself that you will fit it in at least once a week.

At the College we know the Australian legal profession having had over 60,000 lawyers complete practical legal training since we started teaching PLT. We have a deep concern about wellbeing in practice and we run workshops to help you implement strategies to achieve this. Tied in with this we have courses starting every month of the year (sometimes more than one a month) to fit in with your needs and we have part time and full time courses. We also run courses at Murdoch uni. We hope to see you at the College when you finish your degree.

I hope you have an evening enjoying each other’s company at this time to relax and leave the pressures of life behind you, even if only for a few hours.

This is not rocket science I know, but it is good to remember that how well you greet the secretary, how well you speak to each member of the panel (including acknowledging all panel members and not just the most senior person on it), how easy you are to talk to are all important factors to achieving employment in the profession and keeping it.

If you make a mistake admit it, never, ever cover it up. It will end badly and may result in a breach of your professional obligations and those standards are high.

Student | Carpe Diem

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PARALEGAL

GRADUATE

― Jonathan Cockcroft―

―Anna Lee―

began working at MinterEllison as a summer clerk in December 2017. I really enjoyed my time as a clerk. The work they gave me was interesting and necessary, the feedck was constructive and given in a positive way, there were untless coffee catch ups and cocktail parties and, most of the people were easy-going, friendly and seemed genuinely ppy to come into the office every day. So, naturally when I got e call to come back to paralegal during my final year of uni h a graduate position attached for the next year I accepted hout hesitation. However, once the initial celebrations died wn, and the courier delivered bottle of Champagne had been unk, I started to suspect something was amiss. I’d heard all e stories of lawyers working 15 hour days and weekends and l struggling to meet their billable targets. Maybe the clerkship d just been a trick to recruit unsuspecting law students into a e of servitude!

rrived for my first day with a healthy dose of scepticism fully pecting that now I had signed on the dotted line I would be nsigned to endless document reviews and scrolling through coveries till all hours of the morning with barely any time to tually finish my degree. However when I got up to reception y new supervisor was already there waiting to take me out for ffee. The first thing he asked me is what my uni timetable was e. I nervously told him that I could only get two days a week but I could skip my civil procedure lecture to get a third if he eded. His response was that I should never skip a class for rk and if I ever needed time off for an assignment deadline or am all I needed to do was ask. He then asked me what kind work I was interested in. I told him I was still trying to figure at out but I had enjoyed advocacy and mooting at uni. He then nded me a statement of claim to read and told me we had a aring at the Federal Court in an hour. From that day until now, I l haven’t had a dull day at the firm. Every time I came in I was en feedback on the work I’d previously done and then given mething slightly more advanced. From drafting summary jument applications in the District Court (thank god I went to y civil procedure lecture) to assisting with defending an applition for leave in the High Court.

ce I settled into the work and started feeling comfortable ound the office I began to get more interested in the social e of things. Even though I was still a paralegal, I found myself rmly welcomed and included in all the social functions and ining presentations organised by the firm for the graduates d junior lawyers. The firm even arranged for me to visit the dney and Shanghai offices when I decided to go travelling in e months between graduating uni and starting as a graduate. well as having some great nights out and making a heap of w friends, this also allowed me to get a good insight into all e different practice groups across the entire firm. When the me came to put in preferences for my graduate rotations not ly did I have a comprehensive knowledge of each practice oup, who the partners and senior associates were, what they ecialised in and how they managed their teams, but most of e teams and partners knew me quite well too.

I write this I am in the 4th week of my first graduate rotation tting to do a split rotation across my two most highly prefenced teams. I still haven’t got anywhere near a discovery and y evening and weekends are mine to do with as I please.

D

uring my time as a Law Graduate at Squire Patton Boggs – I have found no two days are the same. I am fortunate to have gained experience in a broad range of work and opportunities including:

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Assisting in drafting strategic advice on complex legal issues

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Attending a conciliation conference

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Joining telephone conferences with clients

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Working on pro-bono matters

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Drafting client newsletters and blogs.

I am constantly challenged, always learning and most importantly, really enjoying my role as a Law Graduate. Being at university and studying law is very different to actually working at a law firm. You don’t just do legal research for a 2000 word assignment, you do research to form a legal view and to support your reasoning to the client. I was interested in employment law after completing the related unit at university and was so pleased when I got told that my first rotation would be in the Labour and Employment team. In just a few months, I have gained knowledge in a range of topics, including: •

Workplace bullying

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Employee termination

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Health and safety at work

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Migration law

I have also been exposed to things I couldn’t have imagined would be related to working in employment law, such as researching the Criminal Appeals Act! The firm has a strong focus on learning and development and provides a very supportive work environment. I work one-on-one with the Partner in my team who is very personable, as well as senior lawyers who are always happy to answer any questions I may have. I receive regular feedback on my work and performance which I find to be very valuable.

I have had the opportunity to work on matters from the beginning to the end, which is rewarding and assists in my learning as I can see my contribution and how it impacts the matter throughout the process.

Along the way, I have learnt to be more commercially aware of clients’ interests and how to deliver solutions that are valuable and meet their expectations. With the support of the firm and the opportunities that I have been offered, I feel better prepared for when I get admitted as a lawyer at the end of the year.

I believe working at a place you genuinely enjoy coming to and getting along with your colleagues is one of the most important factors in deciding whether a firm is the right fit for you. As soon as I started working at Squire Patton Boggs as a paralegal, I knew that it was a firm I could see myself working at long term. Everyone was so welcoming and the firm has a strong collaborative culture that really makes you feel like part of the team from day one. It’s a very social environment with lots of fun events – we even have a firm BBQ! Being a global law firm, our Perth office receives work from clients all over the world which always keeps things interesting! I definitely feel the exposure that I have received to a wide variety of work is assisting me to be the best lawyer I can be.

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RESTRUCTURING AND INSOLVENCY ― Jessica Antel ―

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WHY RESTRUCTURING AND INSOLVENCY?

C

layton Utz's Restructuring and Insolvency (R&I) practice group is one of the leading practices in its field in Australia. It is highly respected in the industry and by clients for its impressive knowledge, reliable advice and thorough understanding of the market.

Due to its breadth of clients, a role in R&I provides the opportunity to work on matters in superior courts in all jurisdictions. Many clients are well known and leading in their own industry and sectors. These include insolvency practitioners, corporate entities, secured or unsecured creditors, banks and hedge funds.

As a lawyer growing your experience in the R&I team, you will be encouraged to collaborate with clients and relevant industry players to explore solutions from an early stage, and under the guidance of a supervising lawyer.

The range and scale of work is impressive, often large matters that have multiple complex legal and factual issues to understand and address. Despite the prominence of many large-scale matters, lawyers who are developing their experience are welcome to attend client meetings, hearings and negotiations from an early stage. This is key for learning and growth. And there is nothing better than seeing or hearing your hard work included in the final client advice or court submissions.

In addition to working with clients and others in the R&I team, Clayton Utz lawyers proactively collaborate with other practice groups including commercial litigation, banking, corporate, workplace relations, tax and real estate. This helps to offer the client a firstclass, integrated legal services offering.

Lawyers in R&I regularly gain an in-depth and up to date knowledge of processes and requirements in many practice areas.

This contributes to a well-rounded and thorough knowledge of the law and how it can be applied in a mix of commercial environments.

WHY CLAYTON UTZ?

T

h e opportunity to explore your legal career at Clayton Utz brings with it many benefits. For me, Clayton Utz was the obvious choice due to the supportive, friendly and down to earth individuals that become your team. Under the guidance and encouragement of talented experts in their field at Clayton Utz, you will be encouraged to grow, both as a lawyer, professionally and personally.

The continual learning programs Clayton Utz offers encourage growth and development in areas such as problem solving, risk management, efficiency, productivity, writing, drafting and communication.

One of the biggest attractions to the firm for myself and many others is the freedom to approach important tasks individually, with the guidance and support of senior team members. This encourages greater learning and engagement with projects.

Commercial law brings with it clear networking opportunities to meet others from areas like accounting, insolvency and law firms.

This assists in the development of client relationships and understanding market trends which in turn supports us to better help our clients.

As a law student, it is often difficult to know where to start your career. While a lot of it is seeing how you go via experimentation such as trying different clerkships and part time positions, one of the most useful and effective ways of better understanding a potential employer or area of law is to simply try it. So connect with people you know in the industry, make new connections and try to speak to someone who works at the firm and/or in your area of interest.

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Law students are in a perfect position to prepare themselves for the changing nature of the legal industry. You are all adaptable, fast learners, adept at new technologies, and open to trying new things.

Many of you all also possess skills that are not strictly law related, but which will put you in good stead to succeed in a law firm or an in-house legal team and deliver legal work for clients in new ways.

Capitalising on these skills will turn you into a T-shaped lawyer and make you invaluable to law firms and the legal industry.

WHAT IS A T-SHAPED LAWYER? You have heard people say that ‘soft skills’ and ‘commercial skills’ are just as important as legal skills.

While this is completely true, it is also true that legal teams are looking for lawyers who have knowledge in other areas that are necessary to succeed in ‘new’ law where innovation and adaptability are paramount.

Having knowledge in these other areas, alongside your legal knowledge, makes you a T-shaped lawyer.

The concept of a T-shaped lawyer is based off the idea of a T-shaped person. T-shaped people have a depth of knowledge in at least one specific discipline (being the vertical and importantly, central line of the ‘T’), as well as a breadth of knowledge across other diverse yet related disciplines at the top of the ‘T’.

Whilst the concept of a T-shaped person is not unique to law, being a T-shaped lawyer will make you stand out as unique to a prospective employer.

In the diagram to the right, the vertical of the ‘T’ is your law degree and your legal knowledge – you have a depth of understanding in this area. The horizontal line of the ‘T’ is comprised of those skills that you don’t have a depth of knowledge in, but you are aware of them and know enough that you can recognise where those skills could be used when completing your legal tasks. They are the skills that lawyers have traditionally not had to know about, but which are becoming increasingly important as client’s needs are changing.

It is important to note that T-shaped lawyers do not have, nor do they need to have, a depth of knowledge in every topic that forms the horizontal of the ‘T’. It is more important that as lawyers, you know enough about these skills to identify where they could add value to your legal work, and then reach out to the right people who do have a depth of knowledge in these areas who can help you. For example, you do not actually need to know how to write an AI algorithm, but you do need to know how AI can be used to review legal contracts for the purposes of due diligence.

DOES IT MATTER WHAT SKILLS ARE ON THE TOP OF THE ‘T’?

HOW CAN YOU BECOME A TSHAPED LAWYER?

It depends on who you ask, whether you work at a law firm or in-house, and what area of law you want to specialise in. The crucial part of being a T-shaped lawyer is that you have a responsive attitude that allows you to keep up with new developments.

The good news is that as law students who will be entering the profession in the near future, you are in the best position to become T-shaped lawyers. You can do this by capitalising on the skills you have learnt at university within and outside your law degree. Are you on the leadership committee of any student clubs? Then you have probably amassed a great deal of knowledge about project management and risk management. Are you regularly trying new technology platforms or thinking about how you can use technology to make your life easier? Then you are open to using legal technology and won’t be afraid to try new technology, like AI, to help you do your legal work.

What does matter is that ‘Generalist skills’ (the ‘G’ on top of the ‘T’ in the diagram) are still relevant to a Tshaped lawyer. ‘Generalist skills’ are ‘soft skills’ such as emotional intelligence and communication skills.

These still play an important role and enable T-shaped lawyers to communicate effectively with other lawyers and the multi-disciplinary specialist teams who have deep knowledge of the skills along the top of the ‘T’. It is not likely that a data analyst, a project manager, and a lawyer will all automatically understand each other or what the other person needs in order to do their job. You may find yourself talking to a software engineer who is helping you with data management, or you may be speaking to a design thinking specialist who is helping your client solve a complex problem.

Many of these people will not have law degrees, nor will they have done legal work before, but you still need to be able to effectively communicate with them.

You will therefore often find yourself being the integrator between all these different parts of the business – bringing together different teams and stakeholders and making sure everyone is speaking the same language. Being an active communicator is a critical enabling skill for this role.

This situation will likely become increasingly common as the legal industry expands to include more multidisciplinary teams of lawyers and other professionals who all contribute to how legal work is delivered. This is especially the case for Australia, as the regulatory structure here allows for non-lawyer ownership of law firms. Indeed, the Gilbert + Tobin Partnership has Partners that, whilst having completed a law degree, do not hold practising certificates. Your skill as an active communicator is what will see you unite these various stakeholders for a common goal, and ultimately succeed as a T-shaped lawyer.

When you enter the profession, continue to look for ways that you can be creative and innovative in how you deliver legal work, and look for opportunities to develop your non-traditional skills. Such opportunities could include a secondment to a new business area, getting involved in knowledge activities, or attending events that can upskill you in different topics. It is also important that you seek out opportunities to collaborate with your colleagues from other areas of your workplace so you understand how they can add value to your legal work. Building strong relationships with your colleagues in legal operations roles will enable you to draw on their knowledge and expertise when needed.

Whilst the prevailing commentary is that law students leave university unprepared for the legal profession, you have more skills than you realise, one of them being that you are all strong communicators. As lawyers of the future, you will become the communicators who will recognise opportunities and unite diverse teams to perform legal work in the best possible ways.

Lauren Ziegelaar recently returned to Perth from a 3 month secondment to the Legal Service Innovation (LSI) Team in the Gilbert + Tobin Sydney office, and was one of two G+T graduates who completed a graduate rotation in the LSI Team. Gilbert + Tobin ensures its lawyers are prepared for the continually evolving legal landscape by giving their graduates opportunities to develop skills in innovation, legal technology, and service delivery in their graduate program.

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Get Real Alix Poole is a final year law student and works as a paralegal at Squire Patton Boggs. She explains how her job has given her a head start in life as a lawyer.

It’s not until you experience the reality of working in a law firm that you know for sure whether you’ve made the right career choice. That’s why I’m so grateful I had the opportunity to intern then work at Squire Patton Boggs while studying. University provides the basic tools you need to become a lawyer, but there is so much more to learn on the job.

As the end of my internship drew closer, I was invited to stay on as a casual paralegal in the construction and international dispute resolution team, which I joyfully accepted.

I have already noticed a difference between being an intern and a paralegal. For starters, I was granted more flexibility and responsibility in matters and I have increased my hours to around three to four days a week. At present, I am solely focused on a massive contractual dispute between a Chinese company and a Spanish company.

What I really enjoy about working in the construction and international dispute resolution area is the ability to work on one matter for an extended period, essentially becoming an expert on the facts of the case.

For starters, I quickly realised that my original intention to become an environmental lawyer wasn’t my passion after all. Since working on real work for real clients, I’ve learned that commercial law is where I want to be. I’m so glad to have figured that out before I graduated.

The diversity of the work I have been able to experience at Squire Patton Boggs is unlike anything I would have ever imagined especially coming in as an intern.

So, How Did I End Up Here?

Additionally, I am thrilled that Squire Patton Boggs has offered me a graduate position, starting in February 2019.

I completed a double degree in Environmental Science and Business Law at the University of Western Australia and really enjoyed the business law units.

I then enrolled in the Graduate entry LL.B. programme at Murdoch. To fulfil my degree elective requirements, I decided to apply for an internship under the LLB301 unit. Lucky for me, Squire Patton Boggs was offering two positions under this internship and, thankfully, I was awarded one.

My work as an intern involved two full days of work each week in the Real Estate team, which I took on in addition to my full-time university studies.

No two days were the same, with a wide range of tasks, including applications for liquor licences, perusing and drafting contracts and LandGate forms, and conducting investigative work for liquor approvals.

Another great thing about interning is that you learn how to work in a professional environment, how to collaborate and you also have the opportunity to socialise with a broad range of people.

This gave me confidence that I would enjoy full-time work when my university days came to a close.

squirepattonboggs.com

At times, the full-time study load and working hours were intense.

The support of each member of the team, the flexibility offered and my enjoyment of working at Squire Patton Boggs ensured that I met my commitments to both work and study

About Squire Patton Boggs Squire Patton Boggs is a global business law firm with 47 offices across 20 countries. In Australia, we operate in Darwin, Perth and Sydney. We provide clients with unique insight at the point where law, business and government meet, giving them a voice, supporting their ambitions and achieving successful outcomes on their behalf.

Interested? Get in Touch If you would like to find out about paralegal roles, please contact Rebecca Hansen, HR Consultant, at rebecca.hansen@squirepb.com.

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