The Brief Edition 3 2014

Macquarie University Law Society magazine

The Brief | Volume 20, Edition 3

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CONTENTS 10 6 Does God Belong in Our Public Schools?

What We Need to Know About Pharmaceutical Patents

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University De-Regulation: What Does It Mean for Law School?

Russia and Ukraine: Testing the Legitimacy of International Law

13 Cancer Voices Australia: Myriad Genetics Inc: On the Legality of Gene Patenting in Australia

26 President’s Report for Session 1

GOLD SPONSORS

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WITH THANKS TO

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Protecting a Free and Open Internet

Towards a Green and Black Future

28 Reflections on Being a First Year

more...

4 New in the Law 29 Stuff Law Students Like 30 Crossword is back with a delightful vengeance and three glorious months of summer holidays are in sight. That being said, now is not the time for contemplating where on Earth the last 10 months went or flaunting newly acquired tan lines. Your Type-A law student minds should be focused on the final hurdle(s) – purchasing your masks for Law Ball, preparing for the upcoming MULS Elections, bracing yourselves for Health and Wellbeing Week and of course acing those final exams.

PRESIDENT’S WELCOME Members of MULS, I am proud to present to you the third and final edition of The Brief for 2014. As expected, this edition is bursting at the seams with high-quality articles written by fellow Macquarie Law Students.

We’re on the home stretch. Conception Day has been and gone, warm weather

On a congratulatory note, this edition marks the final Brief under the helm of our talented Brief Editor, Emma Grimley.

These publications are a credit to her creativity, ambition and unrelenting pursuit of perfection. Well done, Emma.

You’ve nailed it.

Dear Reader, How have we already found ourselves nearly at the end of another year of law? Sadly, this is the end of another year of The Brief, and the end of my tenure as Editor. I would like to start by saying thank you to MULS members for electing me to this position, I hope I have done the role and the publication justice.

We have covered so much over the year, with so many engaging pieces written by talented students on the issues that have had us all talking.

We’ve looked at the legal profession itself, significant cases, reform issues such as coward punch legislation and sexting, and complex international law issues such as whaling and the Trans-Pacific Partnership.

In this edition Tim Grellman looks at the recent judgement from the High Court on school chaplaincy programs, whilst Katharine Lam tells us why we need to think about pharmaceutical patenting. Patrick Barkachi, Deputy Editor, returns with his third installment of the year on net neutrality. We look at the deregulation of university fees and what this means for law students, and the conflict between Russia and Ukraine.

Social Justice Corner returns with Jenny Tridgell taking a look at indigenous issues in the Cape York region, and Connor Hogg delivers the tough questions yet again in the crossword.

Enjoy every word. You’re in for another treat. Enjoy the rest of the semester and have a safe (and let’s not forget brilliant) end of year.

I give my sincerest thanks to everyone who played a part in helping me create The Brief this year.

All the best,

Welcome to the final edition of 2014.

Max Turner | President

Emma Grimley | Editor

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Volume 20 Edition 3, October 2014

© Macquarie University Law Society 2014

EDITOR Emma Grimley DEPUTY EDITOR Patrick Barkachi DESIGNER Nathan Li SUB-EDITORS Valiant Warzecha, Patrick Barkachi, Luke Richards, Connor Hogg, Sarah Li Yee Lien CONTRIBUTORS Tim Grellman, Katharine Lam, Elyse O’Sullivan, Patrick Barkachi, Jennifer Tridgell, Kathleen McKinlay, Ibrar Ahmed, Elsa Chapple, Luke Richards, Connor Hogg EDITORIAL REVIEW Angela Voerman Manager, Student Engagement Laura Webster Director (Publications), Macquarie University Law Society IMAGE CREDITS All images courtesy of Shutterstock.com unless specified otherwise.

THE BRIEF ONLINE The Brief can be read online at www.muls.org or on ‘The Brief’ Facebook page.

DISCLAIMER All views expressed herein are those of the individual authors and do not reflect, in any way, the attitude of the Macquarie University Law Society. The Macquarie University Law Society does not accept any responsibility for the losses flowing from the publication of material in The Brief.

Action against privacy breach.

In Australia there does not currently exist a cause for action in the case of personal breach of privacy.

The need for such action is increasingly necessary in the ‘digital age’ The Australian Law Reform Commission through a report on ‘Serious Invasions of Privacy in the Digital Era” has recently explored the means and methods of implementing such an action.

The ALRC suggest that new Commonwealth laws should be created protecting the intrusion upon seclusion (physically intruding upon personal space, or watching, listening, recording private affairs) and the misuse of private information.

It is imperative that these laws are correctly balanced with freedom of speech, freedom of the media and national security.

ACCC in proceedings against gaming giant Valve The ACCC has brought action against the ‘Steam’ parent company Valve alleging consumers have been denied any refunds for all games bought through the Steam service. Valve has ignored statutory guarantees that the games would be acceptable quality.

Valve is an online game developer and distributor with no physical presence

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in Australia, which creates jurisdictional issues.

ACCC seek injunctions, penalties, disclosure orders, consumer redress and costs. Although it may be an American based company, “it is carrying on business in Australia by selling to Australian consumers, who are protected by the Australian Consumer Law.”

A full federal court upheld the decision that isolated human DNA is a patentable subject matter.

This has been a controversial topic internationally, with the US Supreme Court holding that isolated genes were not patentable. The US decision highlights that DNA is not invented or owned. Nine Supreme Court Justices warned that patents over DNA could “impede the flow of information that might permit, indeed, spur, invention.”

The Australian decision emphasises the importance of flexibility in IP law as to encompass the rapid development of science and technology.

Those in the US are able to develop products using DNA. At this point, we are currently restricted by IP law. However, if isolated DNA cannot be patented companies do not have the incentive to invest R&D for innovation. It’s a double edged sword.

These ruling are not exhaustive on all DNA, leaving room for future court battles over genetic information and intellectual property.

High Court keeps the Government in check over Asylum Seeker Rights.

Two rulings have quashed the federal governments plans to give out temporary protection visas.

In a unanimous decision the High Court ruled that those who hold a temporary humanitarian concern visa and who have been detained for 2 years cannot be precluded from applying to gain permanent visa.

No implied mutual trust and confidence in employment contracts.

The High Court has unanimously rejected an implied term of mutual trust and confidence in employment contracts.

On the facts, proceedings were brought by Mr. Barker who claims Commonwealth Bank of Australia failed to make proper efforts to redeploy him after his position became redundant.

In Commonwealth Bank of Australia v Barker [2014] HCA 32, an implied duty of trust and confidence was found to be only implied if necessary, it is not sufficient that it would have been reasonable for the parties to have agreed to these terms.

The High Court emphasises that this decision does not impact the general obligation to act in good faith in performance of contract.

What the ruling means for you? Employees are no longer able to depend on an implied mutual trust and confidence in claims regarding employer predismissal conduct.

In another verdict shortly after, the High Court blocked the Governments attempts to exploit legal ‘loopholes’ in order to grant temporary visas. This decision was also the first time the constitutional limits on immigration detention were laid out.

Government can now only lawfully detain in the circumstances; considering whether to allow a visa application, to consider an application or to remove someone.

It is only lawful if “pursued and carried into effect as soon as reasonably practicable” with the length of detention being ““necessary and incidental”.

Tasmanian protest legislation Tasmanian legislation recently introduced for review suggests that protestors who have deemed to interfere with operations of a business could be fined and face a three month gaol term.

The proposed legislation is so broad protestors would have no idea when they’re breaking the law. Because such legislation would criminalise expression, The UN Human Rights Council advised the Federal Government that it is likely to breach Australia’ International human right obligations.

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After the judgement of Williams v Commonwealth (No 2), Tim Grellman asks whether chaplaincy programs are needed in schools.

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n June 19, 2014, the High Court of Australia invalidated the Coalition Government’s extension of the National School Chaplaincy program in Williams v Commonwealth (No 2). This triggers an important question for our country; does God belong in our public schools?

THE COMMONWEALTH’S VIEW Since 1996, both Labor and the Coalition have supported government funding for the teaching of religious values in public schools. John Howard, believing that the ‘education function [was] being colonised by the economic rationalists’ imputed ‘values’ into the ‘value-neutral’ public school system.

By 2006, Howard had outsourced pastoral care of public school students to religious chaplains, who encouraged public school students to explore ‘Christian values.’ In 2009, Kevin Rudd told the National Conference of the Australian Christian Lobby that he had been a supporter of public school students receiving chaplaincy. Furthermore, Julia Gillard promised to increase funding to the program by $222 million. Most recently, Education Minister Christopher Pyne said on Q&A last year that ‘Christian values’ were more important than resources in public schools.

Unsurprisingly, in Williams v Commonwealth (No 2), the Commonwealth argued that God does belong in our public schools. The Commonwealth justified their National School Chaplaincy program per section 51(xxiiiA) of the Constitution, claiming that the promotion of ‘Christian values’ by religious chaplains in public schools is for the ‘benefit of students.’ The High Court disagreed as they were unable to find a head of power in our Constitution justifying religious school chaplains.

DREAMS OF “FREE, COMPULSORY AND SECULAR” EDUCATION When Mary MacKillop became Australia’s first patron saint, Prime Minister Gillard said MacKillop’s legacy is ‘the enduring importance of [state supported] faith-based schooling’ through the National School Chaplains program. Prime Minister Gillard was inaccurate. In 1871, the 29 year old MacKillop ran 21 Catholic schools in South Australia. That year, the young MacKillop risked expulsion from the Church by opposing her senior, Bishop John Quinn, who negotiated public funds for the school. While MacKillop had deep Christian convictions, she was convinced that ‘the separation of church and state must be absolute.’

MacKillop’s true legacy is secularism, secularism that embodied the spirit of 19th century Australia. In parliament after parliament, the young colonies sought ‘free, compulsory and secular’ education. None less than the Anglican Archbishop of Brisbane, William Hemmant, said ‘in a young colony like this it is highly desirable that the children of all

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religious denominations should be taught together. They will all have to work together afterwards, and by keeping them apart, and making distinctions when young, it teaches them to think that other children are either better or worse than themselves.’

Like MacKillop, the Archbishop had deeply-rooted Christian convictions, but he too was convinced of the need to separate church and state, denying the state-funded segregation of children based on their religion.

In Western Australia, Governor Frederick Weld (1868-75) championed the ‘secular and compulsory’ Western Australian Education Act. Weld said ‘the new nation deserved nothing less than for all its children to enjoy the best education, side by side, growing up knowing that their destinies are bound together.’ Like MacKillop and the Anglican Archibishop of Brisbane, Weld, a product of England’s Jesuit schools, had Christian convictions, but this did not, in his eyes, justify the segregation of children based on religion.

Today, Victorian children enjoy a legislatively guaranteed right to ‘a secular education.’ This was championed by the Christian, George Higinbotham, who believed that ‘public money should not teach children that some are better than others, deserve more than others, or have a better chance of going to heaven than others.’ All across our nation, liberal Christians of our young colonies were creating the first ‘free, compulsory and secular’ education the world had ever seen.

Early in NSW, only Anglicans enjoyed educational opportunities due to funding arrangements. Following violent confrontations between Anglicans and Catholics, Governor Bourke, himself a devout Anglican, realised that a peaceful and united society required secular education that ‘ensured all children grew up knowing their unique traits are a treasured part of the national future.’ Sir Henry Parkes continued this legacy with his ‘egalitarian dreams’ including the belief that ‘the assembling of all children side by side in these schools cannot fail to establish mutual sympathy and respect for people of all denominations.’

Prime Minister Gillard erred in justifying God in public schools per the legacy of our nation’s Christian forbears. In fact, their legacy was the opposite. The men and women who created Australia’s public education system believed public schools must be ‘free, compulsory and secular.’ They instilled ‘egalitarian dreams’ into our nation which we still hold dear, derived from their belief that ‘all [our nation’s] children should enjoy the best education, growing up knowing that their destinies are bound together.’

THE REALITY OF SCHOOL CHAPLAINS In 2012, the Victorian Government funded ACCESS (12 Protestant denominations) to encourage 120,000 public school children to explore ‘Christian values.’ ACCESS teaches children to take a literalist approach to the Bible. For example, they instruct children to read literally Kings 1:18, which encourages one to follow teachers. What would happen if these kids went home and read literally those parts of the Bible that demonise homosexuals and marginalise women? How does George Higinbotham’s dream that ‘public money should not teach children that some are better than others, deserve more than others, or have a better chance of going to heaven than others’ tie into this?

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The men and women who created Australia’s public education system believed public schools must be ‘free, compulsory and secular.’

They instilled ‘egalitarian dreams’ into our nation which we still hold dear, derived from their belief that ‘all [our nation’s] children should enjoy the best education, growing up knowing that their destinies are bound together.’”

Catherine Byrne examined the desecularisation seen in QLD and NSW public schools. In several QLD public schools, children were told that unsaved families will burn in hell. Furthermore, nine year olds at public schools in NSW were told that ‘God gets angry at men that marry foreign women.’ Suggesting to children that God dislikes interracial marriages seems incompatible with Governor Bourke’s dream that ‘all children grew up knowing their unique traits are a treasured part of the national future.’ And yet our government, happy to break down the wall between church and state once maintained by MacKillop and the Anglican Archbishop of Brisbane, claimed in Williams v Commonwealth that religious chaplains are for the ‘benefit of students.’

In QLD, the Bjelke-Peterson government removed ‘secular’ from the Education Act, enabling the government to include creationism in the science curriculum.

Until 2012, students in QLD public schools had to complete an assessment task that demanded a positive assessment of arguments supporting creationism. More shockingly, the QLD Studies Authority said ‘it is normal practice for teachers to present different perspectives when teaching a required topic, such as evolution.’ Creationism is not presented as a ‘non-scientific theory’, but as a viable alternative to evolution.

The teaching of creationism as a viable alternative to evolution, a result of the de-secularisation of the QLD Education Act, seems incomprehensible in a secular nation.

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MY EXPERIENCE In 2012, the Victorian Civil and Administrative Tribunal (VCAT) dismissed a complaint made by parents who disliked their children being separated from their friends during religion class because they are identified as ones whose parents ‘do not believe in God.’ I attended Chatswood Public High School, one of the most multicultural schools in Sydney, and I can empathise with these parents. Early on, as a Protestant, I was segregated from my Catholic, Muslim, Buddhist and Atheist friends, being placed into Anglican RE class.

This process publicised everyone’s faith, or lack of, which created a divided school community. By my later years of school however, most of us elected nonreligious studies, believing our religious differences should not segregate us at school. In my earlier school years I saw that the segregation of school kids based on religion caused a divided school community, which I believe would contribute to a segregated society. The removal of religion as a segregating factor united us at Chatswood to believe that all of us, from all faiths, ‘are a treasured part of the national future.’ Like the parents at the VCAT I believe that ‘it was wrong that [their children] have been put a segregated position by the State secular school system.’

CONCLUSION Our major political parties believe God belongs in our public schools, do you? We cannot ignore that religious chaplains, often with good – but

misplaced – intentions, have led to a significant amount of Australian public school children being told that; a literalist reading of the bible is suitable, that God dislikes interracial marriages, that unsaved families burn in hell and, that creationism is a viable alternative to evolution. These results were the fear of the men and women who created Australia’s ‘free, compulsory and secular’ public schools. Perhaps our current crop of politicians are right. Perhaps children should conform to the ‘Christian values’ that John Howard, Kevin Rudd, Julia Gillard and Christopher Pyne seem to wear as a badge of honour.

So, does God belong in our public schools? I submit that this is not merely a question of policy, but is one of the most important question that we Australians must confront. Because what it entails - the potential segregating of children in our schools - will determine whether we live in a divided or united society. Do we want to segregate children based on their religion? Mary MacKillop, William Hemmant, Frederick Weld, George Higinbotham, Governor Bourke, Henry Parkes - these men and women addressed the question; as can we all. Perhaps like them, we, the Christian majority can realise that we are not always perfect, and that our ‘Christian values’ are not always right.

Perhaps we can wear as a badge of honour not our religion, but our great ‘free, compulsory and secular’ public education system that parliament after parliament nurtured. Perhaps we haven’t lost Henry Parkes’s ‘egalitarian dreams’ and perhaps we still hold dear Governor Weld’s vision that our nation deserves ‘nothing less than for all [our] children to enjoy the best education, side by side, growing up knowing that their destinies are bound together.’ Chatswood is the home of the Indigenous Cammeraygal Nation who’s Wallumedegali inhabitants for 40,000 years firmly relied on the legacy of their ancestors for guidance in times of uncertainty. Perhaps we can do the same. With a firm reliance on the dreams of our founders, triggering an equally firm dedication to Australians of all backgrounds, of all religions, and of all cultures, perhaps we can reclaim the secular, ensuring that ‘free, compulsory and secular’ education has not died in the compassionate and multicultural nation that created it.

MACQUARIE LAW STUDENTS, SEE WHERE YOUR LAW DEGREE CAN TAKE YOU:

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Katharine Lam tells us why we need to pay attention to the development of pharmaceutical patents.

WHAT WE NEED TO KNOW ABOUT PHARMACEUTICAL PATENTS

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ith copyright protection fast becoming entrenched in everyday aspects of consumer life, it is easy to become captivated by the frequent corporate spats over issues such as smartphone design features or whichever file sharing platform has been most recently shutdown - if only to resurface again. The issue of pharmaceutical patents in comparison is afforded significantly less attention and exposure. Conceivably not as relevant to us as the recent Youtube music infringement cases involving prominent Internet icons such as Michelle Pham and Ray William Johnson, the matter of pharmaceutical patents nevertheless has far ranging economic, social and health implications for all levels of society.

One of the more recent cases to grace the intellectual property dispute stage involves prominent German pharmaceutical company Bayer and its oral contraceptives Yaz® and Yasmin®. On the 19th of June 2014, the Full Federal Court of Australia dismissed the appeal by Generic Health/ Lupin Australia and Apotex and upheld the decision handed down by the original trial judge. It was affirmed that Generic Health Pty Ltd and Australia Pty Ltd had infringed on Bayer’s pharmaceutical patented combination of ethinyloestradiol and drospirenone by marketing and

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selling their generic brand contraceptive ‘Isabelle’, which uses the same chemical combination in the same doses.

The effect of the decision is that Generic Health must cease all marketing and commercial activities regarding Isabelle in Australia. They are barred from marketing, supplying and selling Isabelle in Australia until the patent expires in February 2023.

Since Generic Health and Lupin had derived profit from the sale of Isabelle in 2012 onwards Bayer is also entitled to monetary compensation. Furthermore The Court’s decision also prevents pharmaceutical companies Apotex Pty Ltd, Medis Pharma Pty Ltd, Watson Pharma Pty Ltd, Ascent Pharma Pty Ltd and Eremad Pty Ltd from selling generic versions of the Yasmin® and Yaz® pills until February 2023.

Understandably, Bayer is ‘delighted’ with the result. A Bayer spokesperson espouses the need to ‘vigorously defend its intellectual property and patent rights’ and commented that the case highlights ‘where the law lies in terms of patents.’

Bayer’s firm view on the need for strong recognition of patent rights is sound from an economic point of view. Indeed, where companies develop a new drug they have often invested copious amounts of money in R&D and clinical trials to develop a viable product. In addition

it is highly risky to bring a new drug to market with only a few projects reaching the commercial stage while in contrast it is relatively easy to reverse engineer an already existing product in order to copy it. Patents essentially prevent this type of ‘free-riding’ and give the patentee a period of exclusivity to recoup past investments as well as providing an incentive for further innovation.

All things considered, it makes perfect sense for pharmaceutical companies to enforce their intellectual property rights.

Conversely, there are ethical and social considerations of such a rigid monopoly over what are very much vital medical innovations. Pharmaceutical patents can last up to 20 years and can be extended to 25 years under specific circumstances.

Amongst other obvious market factor consequences of creating a monopoly, Australian pharmaceutical patent law prevents generic drug manufacturers from stockpiling generic pharmaceuticals for export to other countries in expectation of a future patent expiry, whilst providing only minor advantage to patentees as generic pharmaceuticals can still be stockpiled and imported from foreign countries with weaker patent laws. This created an estimated revenue loss of $2.2 billion in 20012009 (According to the Pharmaceutical Patents Review Report 2013).

All things considered, it makes perfect sense for pharmaceutical companies to enforce their intellectual property rights.

Conversely, there are ethical and social considerations of such a rigid monopoly over what are very much vital medical innovations.” is where pharmaceutical manufacturers use patents to inhibit the entry of generic drugs on the market through the process of ‘evergreening’. Where patentees develop marginal improvements to their drug in order to extend their intellectual property rights over successful drugs.

In India, the pharmaceutical patents circuit is strict on the ‘evergreening’ practice.

In the Novartis India case, generic drug makers were legally allowed to continue selling generic versions of the cancer drug Gilvec. As the original drug costs about $2,600, the generic drug, which is priced at $175, is considerably more accessible to patients, especially those from lowersocioeconomic backgrounds. The ruling prevents pharmaceutical companies from obtaining an extension on the patents of already existing drugs by simply making minor changes.

The life of patent protection in Australia has been increasing over time.

Originally at 14 years, patent terms have been influenced by international agreements. Developed countries such as Australia have been apt in pursuing longer and stronger patent protection. This has the downside of imposing significant costs onto users of patented technologies. The World Trade Organisation Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) now sets patent production at 20 years. Patents can increase market prices and discourage innovation, which impacts negatively on health. Another concern

The language of patent law is credited with being largely technologically neutral.

Opinions vary as to whether there should be sub-classifications of patents that specialize in dealing with matters such as technological innovation. Perhaps there should be shorter patent terms for medically innovative technologies such as pharmaceuticals and biomedical advancements. As a result, other companies would be able to legally gain access to research, which would create competition thus making prices more affordable for the average person in a timely manner. On the other hand pharmaceutical companies may feel less inclined to invest should they feel that the drop off the ‘patent cliff’ is much briefer than it was before. Such a system obviously has both positive and negative effects and it would ultimately be up to the government to develop and institute such proceedings.

The Pharmaceutical Patents Review Board takes into consideration the issues affecting pharmaceutical intellectual property rights in the Australian market.

Among their many recommendations they suggest that the Government should seek to incentivize a level of investment in innovation, albeit, in a manner that does not impose costs on innovation or other activity without corresponding benefits.

Another recommendation proposes that the current approach which allows for extensions for drugs and formulations should be allowed but not for methods of use and manufacture. The status of this report is uncertain. It is currently unreleased and the current government does not plan on offering a response regarding the report at this stage.

Pharmaceutical patents provide protection for drug companies to invest in novel technologies. Substantial investment is devoted to creating a commercially viable product in the pharmaceutical industry, while it is easy for generic pharmaceutical companies to replicate an already existing drug thereby bypassing the development and testing phases. Conversely pharmaceutical patents can create a monopoly over vital medical innovations and can be misused by companies who wish to extend the patent life through minor non-innovative changes made to the existing formula. The balance between these conflicting views is not an easy one to rectify with both sides standing to lose and gain should any modifications be made to our current legislation.

Nevertheless this area of IP law is a vital aspect of the functioning of our medicolegal system and remains an interesting space to keep an eye on.

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CANCER VOICES AUSTRALIA:

MYRIAD GENETICS INC: ON THE LEGALITY OF GENE PATENTING IN AUSTRALIA

Elyse O’Sullivan takes a close look at a recent gene patenting case testing new ground in Australian law.

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hough currently under appeal, Cancer Voices Australia v Myriad Genetics Inc [2013] FCA 65. presently stands as the first judgement of the Federal Court regarding the position of gene patents under Australian law. With continuous technological advancements in the globalised life sciences and biotechnology sectors, how Australian Courts adapt to and address issues such as gene patenting could have significant effects on the Australian market.

CASE SUMMARY The case is concerned with US based Myriad Genetics’ patenting of the isolated BRCA1 gene. According to the patent in question, mutations of this gene are thought to account for “approximately

45% of familial breast cancer, and at least 80% of familial cancer involving both breast and ovarian cancer”.

Australian Cancer Voices joined with breast cancer survivor Yvonne D’Arcy in arguing the patent did not satisfy the requirements of s 18(1) (a) of the Patents Act 1900 (Cth).

Commonly referred to as the ‘manner of manufacture’ requirement. This requirement is based on Section 6 of the Statue of Monopolies that was enacted in England in 1623. It was argued that isolated nucleic acid, “which is not materially different to that which occurs in nature”, cannot form the basis of a valid patent as it is a “mere discovery” as distinguished by the ‘manner of manufacture’ requirement.

Essentially, the respondents argued that the process of isolating the nucleic acid sequence effectively created an “artificial state of affairs” resulting in something different to the naturally occurring gene within the human body. It should be noted s 18(2) of the Patents Act 1900 (Cth) categorises human beings, and the biological processes for their generation, as not patentable inventions.

Nicholas J in determining the ‘manner of manufacture’ requirement primarily considered the High Court’s decision in the National Research Development Corporation v Commissioner of Patents (1959) 102 CLR 252 (NRDC case). This landmark case determined the ‘manner of manufacture’ test was to be satisfied by whether an “artificially created state of affairs” had manifested. Nicholas J The Brief | Volume 20, Edition 3

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found in favour of the respondents: “in the context of biological material, an artificial state of affairs may manifest itself in different ways. The physical properties of the naturally occurring material may have changed as a result of it having been isolated. But even if the physical properties of the material have not changed, the removal of the material from its natural environment and its separation from other cellular components may still give rise to what might reasonably be described as an artificial state of affairs.” Effectively, naturally occurring nucleic acid does not exist outside the human body without human intervention.

Attention was also paid to the Australian Law Reform Commission’s (ALRC) Report into Gene Patenting. The report suggested the test for patentable subject matter may warrant reform, recommending: “the responsible Minister initiate an independent review into the appropriateness and adequacy of the ‘manner of manufacture’ test”. However, ultimately it was decided by the ALRC in this report for a number of reasons that “a new approach to the patentability

of genetic materials was not warranted at this time”. The ALRC Report found changes to the patentability of genetic materials could have possible adverse affects for the Australian biotechnology industry as this movement would be a “significant and undesirable” departure from accepted international practice with respect to genetic inventions, and the possible failure of anticipated benefits as many pure and isolated genetic sequences do not exist in exactly the same form in nature.

CONCLUSIONS OF THE CASE In this case, Nicholas J expressly reaffirms naturally occurring nucleic acids, as they exist inside the cells of the human body, cannot be the subject of a valid patent. However, under Australian law isolated nucleic acids, such as the BRCA1 gene, can be the subject of a valid patent. Where, as in this case, the isolated nucleic acid can be identical to that naturally occurring in the human body, this appears to be a loophole past s 18(2) of the Patents Act 1900 (Cth) into potentially patenting human genetic material.

In his concluding remarks, Nicholas J expressly stated his reasons had “nothing to say about the possible invalidity of the disputed claims on any other ground” other than whether the patent in question complied with the requirements of s 18(1)(a) of the Patents Act 1900 (Cth) regarding the ‘manner of manufacture’. Nicholas J further decided to “stay the costs order under such time as any appeal that might be brought has been heard and determined.”

Clearly this is far from the end of the debate on gene patenting in Australia.

IP Australia explains “patents play an important role in incentivising innovation and the public-private partnerships required to bring new human gene based medicines and diagnostics to market.” Though a recent study performed by the Centre for International Economics, commissioned

by IP Australia, reported pricing of gene diagnostic tests subject to a patent “did not appear” to be subject to the patent itself. It is easy to understand and empathise with anxieties patenting of the BRCA1 gene and other isolated nucleic acids could lead to unaffordable diagnostic testing.

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aspire. contribute. thrive.

PROTECTING A FREE AND OPEN INTERNET Does Australia need to step up its game to protect a free internet? Patrick Barkachi sheds light on the issue.

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hat is net neutrality?

Avoiding the technical side of discussion net neutrality is simply the idea that all data travelling over the Internet should be treated equally regardless of source, destination or type. Internet service providers (ISPs) should not be able to exercise control over internet use by discriminating against certain services, imposing special fees on competitor services and even blocking websites and applications that they aren’t aligned with… simply because they have the power to

do so. The debate surrounds several complex questions, most importantly: What does an ISP class as an anticompetitive discrimination action? How will international changes (especially in the U.S) impact Australia’s browsing, and how should we be reacting?

Currently the debate is misdirected: Discussion circulating the web regarding issues of net neutrality seems to emphasise that the largest issue against an open internet is the preferential treatment given to companies who pay to access back channel fast lanes.

This practice essentially bypasses the Internet’s backbone and plugs into dedicated servers inside ISPs. It is argued that because of the high cost of this arrangement it disadvantages smaller sites contributing to reducing competition online… in reality smaller sites do not use nearly as much bandwidth, indeed, half of all of todays internet traffic comes from only 30 outfits such as Google, Netflix, Facebook, Wikipedia and Pinterest. As these sites are responsible for so much traffic, it is reasonable that they are given preferential The Brief | Volume 20, Edition 3

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Net neutrality is a global issue that demands domestic action. Although the Internet is a globalised entity that is boundless in its reach across international borders, maintaining an open web is a challenge that each sovereign must address in their own contexts.”

treatment, this isn’t a negative and it isn’t anti-competitive. The arrangement is neutral from the ISP perspective, anyone who’s willing to meet the costs can benefit, those willing are usually managing massive traffic levels and are likely able to front the costs.

Secondly, this arrangement benefits consumers and providers alike, it means consumers are able to access popular websites more effectively, this in-turn draws clients to ISPs who engage in this conduct, which in a competitive market would be everyone. This type of ‘discrimination’ recognises the value consumers place on different content, however and very importantly remains neutral as to the source of content and it’s relationship with the ISP. Clearly the issues in pursuing a neutral Internet isn’t the Internet fast lanes, they’ve existed for the past 6 years… the current debate is very misled.

On the other hand, discrimination, which seeks to favour particular content and sources at the expense of others, is the major concern, this anti-competition practice of favoritism places power with the ISPs who are then able to hinder speeds and even block access to specific sites they are not strategically aligned with. (An ISP partnered with Google gives them an advantage over their competitors by making competing services expensive for it’s customers, users would then likely favour Google over Bing or Google+ over Facebook. The potential of this occurring is accentuated where the ISP Telco market is dominated 16

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by one or few in a monopoly or oligopoly, this is simply because customers don’t have the power of choice at their convenience. Bargaining power in the market is skewed significantly towards the Big Telco suppliers under this worrying arrangement. ISPs then have undue control over the market for fast speeds, they are able to decide who gets access to what connection at which price. Lawyer and prominent activist for net neutrality Marvin Ammori emphasises how ludicrous this arrangement would be stating, “We don’t want AT&T (or Telstra) to impose a tax and treat those who pay a tax better than others”.

Upon understanding that there are 2 types of discrimination that can occur via ISPs, legislators and competition regulators must take this into account when decided upon regulation for Big Telco and the web.

Although it is necessary, policy makers should be aware that over-regulating will create many more issues than it would fix, disallowing ISP’s to effectively manage their networks by fast tracking major traffic websites would negatively impact users, websites and ISPs… it is vital to the success of an open internet that this separation is understood. Mozilla, an open source and free software community, have publicly urged the FCC (U.S Federal Communication Commission) towards the idea that innovation and competition require nondiscriminatory access for major providers, they ask that network management in allowing prioritised access be distinguished from anticompetitive actions.

Net neutrality is a domestic issue that demands domestic action, although the Internet is a globalized entity that is boundless in it’s reach across international borders, maintaining an open web is a challenge each sovereign must address in their own context. Historically,

Australia has never really had a neutral internet, our providers often shape and restrict traffic whilst allowing “unmetered” access to certain sites for undisclosed reasons. Currently with the NBN rollout occurring the climate in the ISP market will change, once this occurs addressing the looming issues of net neutrality in Australia will become urgent.

It is clear that a liberalised market with an open competitive environment is the answer, with competition users will gain the upper hand in bargaining power, the power of choice means they are able to drop their ISP in favour of one that provides a better and more affordable service. ISPs operating in a widely competitive market will not act contrary to their customer wants, and therefore not engage in any anti-competitive activities such as throttling speeds and blocking sites in fear of losing their client base.

Inevitably competition will also drive down prices and increase the quality of service and innovation in the market and companies fight for market share.

However due to the nature of Telco this requires access to infrastructure, Australia has addressed this issue through significant public funding towards an NBN. The International Telecommunications Union (ITU) highlights the vital role of broadband in underpinning national competitiveness. Full economic and social benefits are best realised when there is a functioning and strong partnership between government and industry, government in this instance must participate at a consultative and participatory level with stakeholders in order to ensure balanced policy. This approach is supported by; the ITU the Organisation for Economic Co-operation and Development, the global Alliance for Affordable Internet and many more.

International developments away from a free Internet will have it’s impact on Australia, it is vital in such times that Australia act on it’s own accord without waiting for political cues from America.

However, will any action conflicting with the U.S ever see bipartisan support, unlikely… not until the damage of their oligopoly telecommunications market is already felt. As such, Australia must act to lead it’s own protection for an open internet by bringing discussion to a national level and addressing the issue before it has potential to spiral.

Founded at the historic point where Captain James Cook first landed his fleet in 1789, this town has been imbued with British colonial architecture, along with a sense of racial superiority. Within this town, the work of the Yuku-Baja-Muliku Rangers signals a new epoch for reconciliation.

Following the devastating wake of Cyclone Ita in April this year, the Rangers volunteered their time to help clean up the community. For months, they worked their way from door to door, doing chainsaw work and removing strewn vegetation, particularly for the elderly. Another service that Yuku-Baja-Muliku ofers to the Cooktown community, regardless of whether they are Indigenous or not, is teaching primary school students about sustainable environmental practice and the rich Indigenous culture. This is Scouts or Girl Guides, with a cultural diference. As the children increase their appreciation of Indigenous culture and share this with their parents, it has become a project in crosscultural understanding.

SOCIAL JUSTICE CORNER

TOWARDS A GREEN AND BLACK FUTURE As an intern with the Aurora Native Title Winter Program, Jennifer Tridgell tells us about the impact of Indigenous grassroots movement Yuku-Baja-Muliku in the Cape York region.

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airns is a tropical paradise, the gateway to the Great Barrier Reef and home to simmering temperatures and racial prejudice alike. Just above Cairns, in the rugged Cape York, is one of the highest concentrated Indigenous populations in the country, with two-thirds of the 15,000 inhabitants self-identifying as Aboriginal or Torres Strait Islander. Yet despite closer proximity to the plight of Indigenous communities as they deal with a life expectancy gap of 17 years less than other Australians, unemployment and low literacy rates, this is where intolerance and racism are most rife.

The 1967 Referendum allowed Indigenous Australians to be counted in the census, instead of being equivalent to flora and fauna, and unified Australians against

detrimental discrimination on the basis of race. In remote Western Australia and far North Queensland, however, where the greatest concentrations of Indigenous populations are found, the highest percentages of ‘No’ votes were recorded.

Attitudes have been changing since then, ever so slowly.

Organisations, such as the YukuBaja-Muliku Ranger program, are stalwarts in a grassroots movement towards empowerment of the First Peoples. YukuBaja-Muliku Rangers are an Indigenous-owned and operated management program, caring for the land and sea over which they hold traditional custodianship and, since 2006, Native Title rights. Based at Archer Point and Annan River, they also hold a head ofce 15km away in Cooktown.

For Indigenous Australians to make the first steps towards reconciliation and empowerment takes tremendous strength and courage. After 225 years of colonisation, the scars are not so much in the past, but part of living memory. YukuBaja-Muliku People have been ejected from their land, massacred and forcibly separated from their families as children of the Stolen Generations, a national practice that continued as late as the 1970s.

Furthermore, Aboriginal and Torres Strait Islander People face far greater barriers than their non-Indigenous counterparts; experiencing dispossession, disadvantage and discrimination by broader Australian society. The figures are alarming, and all too familiar.

Despite constituting 3% of the Australian population, Indigenous Australians represent over 27% of the prison population. Just as in South Africa during Apartheid, racial profiling has a role to play, with Indigenous Australians being around 20 times more likely to be arrested than non-Indigenous Australians. Other issues include foetal alcohol syndrome, domestic violence and substance abuse. The young age structure of the Indigenous Australian population means that the scale of these issues is set to increase over the coming decade.

As Indigenous Australians are the most vulnerable and disadvantaged demographic in the country; this demands creative options for empowerment to The Brief | Volume 20, Edition 3

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For Indigenous Australians to make the first steps towards reconciliation and empowerment takes tremendous strength and courage. After 225 years of colonisation, the scars are not so much in the past, but part of living memory.� break the poverty cycle. Once their land is returned through Native Title, Traditional Owners in Cape York have control over an ecologically diverse and aesthetically stunning natural resource. Their land borders two World Heritage sites; the Wet Tropics of Queensland and the Great Barrier Reef. Their land also boasts globally significant populations of sea turtles and dugongs. This promises prime investment opportunities through Payment for Ecosystem Services (PES).

deforestation. In Australia, BHP Billiton pledged $13.4 million over 3 years for the conservation and on-going management of Five Rivers, 11, 000 hectares of Tasmanian Wilderness. In the Northern Territory, ConecoPhillips pays around $1 million per year for the West Arnhem Land Fire Management Agreement. By employing Traditional Owners as Rangers to conduct strategic early season burns, this reduces the severity and overall carbon output of wildfires.

By placing a value on a given ecosystem or resource, such as biodiversity, PES can incentivise sustainable and socially optimal land use practices. Local landowners or groups receive financial or other payments, like scholarships, which help them rise out of poverty. In return, the investor receives long-term environmental benefits, which could be carbon or biodiversity ofsets to satisfy a corporate-social responsibility or simply the knowledge that the global environment is being protected.

Additionality is a critical factor for PES, with investment being contingent upon improved management of the current ecosystem environment.

Similarly in Cape York, Traditional Owners are the most appropriate people to deliver an ecosystem product, with the YukuBaja-Muliku Rangers have an intimate and spiritual connection to their land at Archer Point. Their traditional land and sea management practices, in conjunction with modern scientific knowledge, are the most suited to that region. If they had sufcient funding through PES, Yuku-BajaMuliku Rangers could ensure sustainable sea turtle populations. This would fulfil the Traditional Owners’ vision for the area, by preserving their Country and its creatures.

Properly implemented, PES products are a lucrative business. For example, Norway pledged US$1 billion to Indonesia in 2010 if it slowed its rate of 18

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Beyond being an environmental product, Indigenous Ranger programs in Cape York have far-flowing social and economic benefits. Working on Country is a very prestigious job within the Indigenous community, enabling the Rangers

to reconnect with cultural roots. For an Indigenous Australian, once you understand where you come from, you can then understand who you are and take pride in your identity.

Employing Indigenous Australians as Rangers has remarkable impacts on the Rangers, their families and their community. From financial independence and increased capacity to manage the environment, comes higher self-esteem, the ability to invest in a house or car and improved nutrition and overall wellbeing.

Other communal benefits include improved school attendance and reduced crime rates. Investment in PES programs in Cape York would ensure that these remarkable changes could continue, even if the government reduced funding.

As Ian Thorpe once stated, you do not need to look to Africa or South East Asia to find disadvantaged people to help. Some of the world’s neediest communities are at our back door, living in Third World conditions within a First World country. Given the depth of their disadvantage, Indigenous Australians increasingly need creative options like PES to help empower them and close the gulf between Indigenous and nonIndigenous Australians.

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UNIVERSITY DE-REGULATION: WHAT DOES IT MEAN FOR LAW SCHOOL? Kathleen McKinlay explores the impact of proposed university de-regulation on law students.

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he Coalition Government’s plans for widespread changes to the university sector will have far reaching implications for the Australian legal service industry. Government enforced caps that have previously restricted the kinds of fees universities can charge will be removed, paving the way for universities to increase fees whenever they deem it appropriate. The result will almost certainly see the overall cost of a law degree rise, essentially pricing some out of the market. Diversity of students attaining legal qualifications will suffer, and graduates will face greater pressure than ever before to pay back higher student loans faster.

Students looking to use their degree in the public service should consider themselves warned. Additionally, the government’s contribution to your degree will be slashed, and changes to interest will mean that women will disproportionately suffer.

Federal education minister Christopher Pyne has stated that changes to the sector are principally centered on fairness.

According to Pyne, universities ought to be able allow the market to decide what fees are reasonable, in much the same way that a private company operates. On a more individual level, the government believes that in introducing the new policies they are meeting the expectations of the general community who have apparently grown tired of contributing to a student’s degree. According to minister Pyne, as university graduates can expect to earn higher incomes than their non-

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graduate equivalents it should not be the responsibility of the taxpayer to contribute any significant proportion to the cost of an individual’s degree. This argument revolves around the idea that it is unfair for the average Australian to contribute – via tax- to the cost of a degree that they have not benefited from. At first glance this may appear a reasonable claim, although the benefits offered to society from higher educations are broad and well documented. A 2012 report commissioned by the British government identified public gains through social mobility as one of these beneficial impacts, in addition to the economic benefits enjoyed by wider society and the individual.

Deregulation of the sector aims to mirror the system currently operating in the United States, where top universities that dominate in global rankings offer some of the best law programs in the world.

Graduates from these top schools are sought by world leading firms who in turn provide enticing salaries. The Coalition’s platforms adopt a free market solution to what they perceive as a growing concern over the global competitiveness of Australian degrees. Institutions will be ‘set free’ from the shackles of government regulation, and universities will be able to demand more money from graduates who have reached the salary threshold.

More money flowing into university coffers means that they will have the financial backing required to offer better services.

This does not come with a guarantee and there are many arguments against

commercialisation of the higher education sector. As journalist Emma Delaney argued recently in The Saturday Paper, ‘if education is reduced to a product, there is no inducement to prioritise the interests of students – just to attract their money’.

Christopher Pyne is not unique in his admiration of the US system, though evidence suggests that such esteem may be misplaced. Australia’s Group of Eight Universities, including University of Sydney and University of New South Whales here in Sydney, unanimously support the idea in principle. They do, however, concede that the sector would have benefited from deeper consideration. Understandably the idea of a deregulated market appeals to older, more prestigious universities that have long sought to charge higher fees for the cost of their programs, especially those with typically high graduating salaries.

The more competitive and popular the degree, the higher the fee hikes should the scheme be adopted. Vocational and professional degrees with international marketability and private practice capacity such as law programs appear set to rise to unprecedented heights.

As our ‘friends in the US’ have observed, elite tertiary institutions such as their Ivy League universities have the power to further entrench inequality by restricting access to less well-off students. One year at America’s most expensive law school at Cornell University will now set you back around $53 150. While it may seem unlikely for Australian law schools

The Coalition’s platforms adopt a free market solution to what they perceive as a growing concern over the global competitiveness of Australian degrees. Institutions will be ‘set free’ from the shackles of government regulation, and universities will be able to demand more money from graduates who have reached the salary threshold.” to follow suit, removing all restrictions is inherently dangerous and students are right to be alarmed. Students from a lower socio-economic background are already underrepresented in tertiary study. You are less likely to attend university if your parents didn’t, and any rise in fees is likely to widen this gap. Even if there are no fees to be paid up front, students from wealthier backgrounds are less likely to be intimidated or deterred by exorbitant fees. Overall, the diversity of students undertaking studies in popular, competitive and expensive programs like law will suffer, to the detriment of the entire legal industry. To draw upon our friends in the US once again, in one recent report Harvard University’s newspaper The Crimson found that almost 50% of Harvard undergraduates came from families earning above $200 000 per annum. An increase in the allocation of scholarships as flagged by the government is not particularly reassuring.

The limited number of students fortunate enough to receive financial aid will be the exceptions, not the rule.

Many have expressed concern over the changes to interest rates, voicing their opposition to a policy that will unfairly disadvantage employed women who take time off to have children. Law schools have been successful thus far in attracting women, with the percentage of women graduating now exceeding men. However, this should not be interpreted to mean that equality has been achieved. Senior roles at many large firms are still occupied overwhelmingly by men, and women earn significantly lower salaries throughout

their career. According to the NSW Law Society, ‘The average income for males continues to exceed females at all levels of experience, including from the first year of practice.’ Once someone has begun making payments, interest will be accrued over any period of time taken off, including maternity leave. The attrition rate is also significantly higher for women, so they have less time in the profession to pay back their student loans.

The rise in student debt will have profound adverse effects on the practice of law in Australia and this will play out primarily in the public service sector, where student debt coupled with low wages will act as a barrier. It is an unfortunate reality that although work undertaken by graduates who pursue careers in the Legal Aid and community legal service industry is accepted as extremely valuable, it attracts drastically lower remuneration than work pursued in the private or corporate sector.

Graduates are attracted to the rewarding work offered by in public service, though they make a significant sacrifice in choosing that path. Most troubling, the Law Foundation of New South Wales found that many solicitors employed in community legal centers across Australia were actually employed under the Social and Community Services Award, rather than a Solicitors award. Irrespective of significant debt levels, the median salary amongst these solicitors was around $53 000. The payment threshold will also be lowered if the package is approved by the senate so students will begin repaying their loans

once their annual income reaches $50 638. Combined, this does little to attract the skilled graduates that benefit society’s most vulnerable.

The problem was observed to such an extent in the US that the American Bar Association commissioned a report on the issue in 2001. They identified that low-paying positions in federal, state and local government agencies, legal services and public defender offices, prosecutorial agencies and not-for-profit organisations were not being filled by disheartened graduates due to overwhelming student debt burden. The report recommending expanding Loan Repayment Assistance Programs (flexible loans made available to those working in the public service sector to assist them in meeting government repayments) that are ordinarily offered by law schools. If Australia is to follow in the footsteps of the US, these programs may one day be commonplace here in Australia.

The reforms were announced by the coalition as part of the 2014/15 federal budget, though they are yet to be introduced to the new Senate. With both Labor and the Greens already voicing their opposition to the package, it appears the minor parties – and crucially, the Palmer United Party- will have the final say as to whether the measures are adopted.

Minister Pyne is right to look to the higher education models of other nations like the US for guidance, though we should have the courage to accept or reject the lessons that international schemes have to offer.

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RUSSIA AND UKRAINE:

TESTING THE LEGITIMACY OF INTERNATIONAL LAW Self interest has diminished the legitimacy of international law, Elsa Chapple writes.

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e are all too aware of the fragility of international law. The common question pondered by all law students is whether international law retains its legitimacy, strength and utility in the face of defiance. Recent international events have brought the debate into the public sphere particularly when they have directly impacted upon Australia. Most recently, the struggle playing out between Russia and Ukraine, a conflict that has resulted in well over a thousand civilian deaths, and just recently, the deaths of 298 passengers on-board MH17, with at least 38 of those victims being Australians or Australian residents. The conflict is one of a handful of actions testing the limits of

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international law and becoming a part of Australia’s mainstream media and political agenda.

RUSSIA AND UKRAINE In late February 2014, a group of heavily armed, unmarked forces spread into the Crimean Peninsula of Ukraine and rapidly seized control of the area.

These forces were later identified as Russian Special Forces. As a Reuter’s article from earlier this year reports, after a spur of denial Russian President Vladimir Putin ultimately admitted the truth of Russian military activity and presence in Crimea. Subsequently, Crimea declared its independence from Ukraine with the support of Russia, with Putin claiming it was a long awaited battle for self-determination.

Russia’s aggressive military campaign is in direct violation of the Memorandum on Security Assurances in Connection With Ukraine’s Accession to the Treaty on the Non-Proliferation of Nuclear Weapons. The agreement was that Ukraine would sign the treaty on Nuclear Proliferation in exchange for assurances that Russia would not encroach on its borders. Despite the agreement’s non-binding nature, it is a fundamental principle found in the ICJ Statute and the Nuclear Test Case that obligations under agreements such as these must be abided by states that are party to the agreements. This mutual respect is the foundation on which international law operates, and the breach of such an obligation represents Russia’s arguably nonchalant attitude to their International

law responsibilities and a terrifying willingness to defy the International community in the hope of what could only be the expanding of their power.

Meanwhile, as Russian rebel troops continue to wreak havoc within Ukraine, humanitarian aid being sent into Ukraine

by Russia, which is widely believed to be a Trojan Horse, acting as a deceptive front for deeper invasion of the Ukraine.

Amidst severe warnings from major international powers such as the United States, Russia has continued to send a convoy of 280 trucks into Eastern Ukraine carrying “humanitarian supplies”.

Whilst the true contents of these trucks are unknown, it appears that Russia is bent on continuing to isolate itself from the global community and focus on its

expanding interest in the Ukraine. This belligerence and egocentricity shown

by Russia has the world fearing that nothing can stop the major power, as International law falls desperately short of encouraging Russian officials to cease their campaign.

militia by any State is the equivalent of the use of force and a violation of state sovereignty. It has been established that Russian leaders knowingly condone and even order the actions that breach international law, despite their permanent seating on the UN Security Council.

Beyond undermining treaties between the states, Russia’s use of force in Ukraine and taking of the Crimean Peninsula directly conflict with the UN Charter. According to Article 2 Paragraph 4 of the UN Charter, it is a jus cogens principle that the force cannot be used to undermine the territorial integrity or political independence of a state. Since Nicaragua v. United States of America, it is a recognised principle of customary law that the supply and support of a

As if to truly ‘put it’ to international law, Russia has not only blatantly betrayed the law’s very precepts, but has then used international legal forums to protect its actions. On the 16th March 2014, it was reported that Russia vetoed a Security Council Resolution to invalidate the Crimean Referendum to sever from Ukraine and become part of the Russian Federation. The world sought to turn their back on Crimea and shun its independence, yet unlike the General The Brief | Volume 20, Edition 3

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Not only is it self-interest that appears to drive State actors into breaching international law, but it seems it is also self-interest that drives us to care. Perhaps it is not that international law is deteriorating in legitimacy because of the actions of states, but that its legitimacy is now merely being questioned because of the magnitude, the media coverage and the nature of the breaches.”

Council of the United Nations, permanent members are allowed to block such a resolution in the Security Council. As the ICJ and UN’s enforcement body, it is highly inconsistent for permanent members to violate international law (without sanction) but also have the power to block sanction of their actions.

This conflict of interest and issue with enforcement greatly undermines the legitimacy of international law.

Despite attempts to avoid the wrath of international law, the formally adopted Generally Assembly Resolution United Nation Declaration on the Territorial Integrity of Ukraine has affirmed Ukraine’s territorial integrity and condemned Crimea’s annexation as illegal. In response, the US and other States have leveled sanctions against Russia, but none so grand as Russia’s sanctions against the rest of the world by banning food imports from countries such as Australia, the US and even the European Union.

WHY WOULD LEGITIMACY DEPRECIATE? International law has been defied, so what? Is this a first, is this a problem, and is it any of our business? Well, yes and no. What may surprise many is that Russia is citing international law to support its actions. Simon Chesterman comments on what is an “embarrassing” move to the US, “Russia has cited the 1999 NATO intervention in Kosovo as precedent for its actions”, the very same intervention created by the US. To create such an intervention, the United States chose to bypass UN opposition, including Russia, to liberate one region from a State, which the US perceived as hostile.

But as Chesterman points out, such an argument by Russia is limited, as the US was acting against what was an inhumane dominance by Belgrade, whilst seeking no territory from the conflict.

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The US Secretary of State has stated that Russia is behaving “in 19th century fashion by invading another country on completely trumped up pre-text." But then again this statement is laughable; is it really necessary that we remind the US about Iraq? Was it terror, where there weapons, or was it simply the oil and power in play that fuelled that breach of international law.

Truthfully, we perceive 19th century triumphs and territorial conquering to have ended decades ago, we believe our order to have transformed beyond this point, and so Russia’s actions are a shock to our system. But then does Crimea become some maverick in international law that warrants our shock and outrage? The answer is no. To justify this, one must simply acknowledge the conflict that was clearly of less interest to the rest of the world, the conflict when Russia used the very same Kosovo precedent to support its ‘liberation’ of South Ossetia and Abkhazia from Georgia. It appears Russia’s tactics in Ukraine have been considered as fair game by the State for decades.

Yet in a laughable act of hypocrisy, it was only in September last year when Russian President Vladimir Putin wrote in the New York Times in protest to US intervening in Syria, stating that “the law is still the law, and we must follow it whether we like it or not.”

What I hope to exemplify here, is that not only is it self-interest that appears to drive State actors into breaching international law, but it seems it is also self-interest that drives us to care.

Perhaps it is not that international law is deteriorating in legitimacy because of the actions of states, but that its legitimacy is now merely being questioned because of the magnitude, the media coverage and the nature of the breaches. When Iraq was invaded, stories of terror, of

soldiers and of oil filled our screens, but rarely did discussions of international law or punishing the US receive airtime. Our self-interest in that conflict degraded any mainstream discussion of the impact on international law. Yet now, as we watch a power not necessarily aligned with our interests enhance their power by breaching international law, we demand action and sanctions and criticize international law. When asked about the hostile Boko Haram campaign resulting in hundreds of thousands of Nigerian civilians fleeing their homeland, or the Cambodian’s being forced from their homes by multinational companies, few people would even be aware, and what’s more, few would care.

And so, it appears, that the plague upon international law is the self-interest of not only States, but individuals, international bodies and media institutions. Such a plague can be attributed to the political and soft nature of international law, a law so far from rule of law or the independence that we seek in our own domestic institutions. One then questions, has international law legitimacy ever existed? Evidently, that depends on the scenario, the facts and the interests, for no two breaches appear the same in substance or in reception.

With a framework so intrinsically politically entwined that it simply rides the tides of the world’s strongest selfinterests, international law is in dire straits. The solution? Well, one is drawn to the idea of enforcement or binding law, of courts with independence and internationally recognized strengths. Put simply, we must facilitate and live in the hope that one day, the everlasting and great potential laying within international law will prevail, and successfully guide peaceful and mutualistic relations between all nations of our world.

MULS SOCIALS SOS II

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PRESIDENT’S REPORT Macquarie University Law Society Session 1, 2014

To members and friends of MULS, The following report provides an insight into the internal operations of MULS. As a tool for increasing transparency, the report highlights the Executive Council’s achievements, but also sheds light on where we can improve. I am proud to present this report in an effort to contribute to a more inclusive and accountable MULS. By way of context, unsavoury, unsustainable and unrepresentative conduct of past Executive members has threatened the society’s existence. An audit of MULS’ effectiveness in 2012 had the society facing potential dissolution. Substantial reform of MULS’ governance model and the society’s aims and objectives may have saved the society termination, but significant work is required to restore the Society’s reputation and overall longevity. Furthermore, an Executive Council member’s tenure expires after one year. It is therefore no easy feat to make a substantial impact on the law student body during your term. As such, the 2014 Executive Council has made a commitment to strategic planning and legacy. By implementing a strategic plan and tightening the handover process, we are able to ensure the effectiveness of future executives, whilst not infringing too much on their sovereignty. Furthermore, it would pain me to see future Executives undermine and discard the hard work of the 2014 Executive in rebuilding relationships and repairing old and inventing new initiatives. The society’s strategic direction will has ensured that the foundations, on which we have worked tirelessly, will remain stable.

MULS is answerable to both Macquarie University Campus Engagement and the Macquarie Law School. One of the unfortunate consequences of the above-mentioned past misconduct was the creation of a rift between MULS and these two bodies. As such, a principal goal of the 2014 Executive Council has been to develop a positive working relationship with both bodies. Although largely inactive in the realms of Education and Academia, MULS has strived to enhance the student experience alongside the Law School and University. This has manifested, among other things, in risk assessment support for our events, the re-affiliation of the Law Society with Macquarie University Student Groups and increased liaising with the Dean of the Law School for the purposes of student advocacy.

Albeit slow, progress on the advocacy front is happening. Watch this space.

MULS never ceases to expand and explore unchartered territory. As it stands, our ticket of offerings spans from social events to competitions, from publications to careers workshops and from social justice initiatives to social sport initiatives. We exist to enhance the law student experience at Macquarie University. Session 1, 2014 has seen our jam-

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packed calendar become further condensed with bold new initiatives. Our Executive Officer (Social Justice), Jenny Tridgell, champions fortnightly chats where students are encouraged to tackle topical social justice and legal issues that affect our community over light snacks. Our Executive Officer (IT), Connor Hogg, has rescued our website from a state of obsolescence. Moving into Session 2, 2014, we intend on dedicating an entire week to promoting health and wellbeing amongst our members and (in true Macquarie fashion) hosting a ‘not your traditional’ social event. Likewise, the Executive Council, in true one-upmanship style, has revamped and enlarged typical offerings and crowd favourites. We are on the eve of the largest Law Ball in the society’s history (with over 800 tickets purchased), we have over 100 competitors in an unprecedented four social sport tournaments, our clerkship fair drew an all-time high 220 aspiring young commercial lawyers and our Clerkship Guide received a much-welcomed facelift. Our expansion and innovation demonstrate that we listen. We understand what our members want and we are constantly evolving to meet this demand.

Despite our exponential growth, discovering both genuine and novel ways to engage our members with all of these offerings is challenging. Whilst our epic social events and competitions are met with consistently high demand, MULS often struggles to attract students to offerings focused on careers, publications and year-group specific events.

Our ambitious Executive Council has pushed the boundaries of the society’s budget to provide law students with as many opportunities as possible (be they to meet new people, flourish one’s CV, or personally develop), however they don’t often receive the intended traction. Humbly, I do not believe this is for want of quality. Instead, I fear that this lack of involvement is indicative of either the typical time-poor law student lifestyle, or possibly the general sense of apathy that pervades Macquarie students. In my own experience, it is next to impossible to convince a student to volunteer their free time for a worthwhile experience provided by MULS if an assignment is due, if they are not usually on campus on that day, or if they simply can’t be bothered. In response to these perceptions, we have attempted to incentivise involvement and, in the alternative, incentivise increasing that initiative’s exposure. Our Facebook “Like and Share” competitions have seen some of our events on Facebook generate over 15 000 views. Regardless, bringing the horses to water is not the challenge, but rather encouraging them to drink. Despite this deeply entrenched culture, MULS will continue to generate ways to engage our members and make our events more attractive.

The strong sense of collegiality within the Executive Council is paradoxically MULS’ greatest strength and weakness. Executive Council members often go above and beyond the call of duty to assist their friends when struggling. Likewise, we gel cohesively and effectively as a team. However, an inability to divorce personal relationships from professional relationships sees some discussion become unnecessarily toxic. Addressing ineffectiveness can often be handled too delicately for fear of insulting your friend, and is sometimes not done whatsoever. I for one have been guilty on some occasions for acting too leniently in response to serious incompetence. I often wonder whether our Executive Council would operate far more efficiently at an arms length, or whether the strong sense of community is what pulls us through in the end, though I do wish to see MULS march down a more business-like and professional path in future.

MULS never ceases to expand and explore unchartered territory. As it stands, our ticket of offerings spans from social events to competitions, from publications to careers workshops and from social justice initiatives to social sport initiatives. We exist to enhance the law student experience at Macquarie University.

As this report reaches its conclusion, it would be remiss of me to not take this opportunity to thank our loyal sponsors for their continued support of our Society. Their generosity is vital to the deliverance of our initiatives, and consequently the personal and professional development of our members. And last, but by no means least, thank you to my Executive.

Being on the MULS Executive Council is a thankless job, but you all still manage to fulfill your duties with dedication, flair and professionalism. I am incredibly appreciative of your efforts.

To conclude, the MULS Executive Council doesn’t exist to satisfy individual egos. We are here to serve you and meet your needs. I wish to remind all MULS members that we are open and inclusive. This report is testament to that. The door of our office (W3A 332) is usually ajar and Executive Council and Board meetings are accessible to all – simply contact enquiries@muls.org to find out times, dates and past minutes. If you are interested in hearing directly from an Executive Council member, do not hesitate to email them. We respond rapidly. All contact details are provided on the MULS Website at www.muls.org. I look forward to tracing the society’s expansion into Sesssion 2, 2014 and for the years to come.

Max Turner | President Macquarie University Law Society The Brief | Volume 20, Edition 3

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Ibrar Ahmed reflects on the times past as a first year of Macquarie Law.

REFLECTIONS ON BEING A FIRST YEAR

I

t’s 3:06am. Before me, and many other first year law students, is a desk strewn with Red Bull and textbooks.

YouTube and Facebook have once again joined forces to create a black hole of distraction, ready to suck in their next hapless victim. The only physical activity said students have had is the turn of thin pages of an extraordinarily thick textbook. They have visualisations about submitting to Turnitin, imagining the warmth of their bed.

However, once the halfway mark of the first year is met, a realisation strikes. While the experience may be challenging at times, to say it is anything but an exciting journey decorated with possibilities is foolish.

Stepping into Law can be quite daunting. But whether it is the thought of buttoning up a three piece suit in the future, or being given the chance to validate and express your point of view in tutorials, most of us have come to love this course and so have I. Before beginning this voyage of examining precedent and submitting buzzer beater assignments, it is assumed learning the theory of law would be ‘dry’. However, the experience has been anything but.

First year students often note that the work, though at times immense, is quite fascinating and relatable to current affairs.

Yet, aside from the content, the time in law has been enjoyable because of MULS events. Based on Poppins theory, “a spoonful of sugar helps the medicine go down”, MULS has formulated that an abundance of fun events welcomes first year students into the MULS family and

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helps them forget the case brief task they have due next week. Between cruises, shaking hands with the Big Six firms and law camp, the experience of the LLB course has been full of laughs, new best friends and memorable times. It seems to some that this first semester may be the highlight of their five or so years.

Macquarie Law also offers the opportunity to step into the polished shoes of a lawyer, through practical learning competitions such as mooting. Students will be able to their skills in legal research and communication skills to address current issues in society or cases they may face when working in the future. These students will be able to compete against each other to debate the Publications (Immigration Issues) Bill 2014 (Cth) and draw upon their skills learnt throughout semester one in the Foundations Moot. Furthermore, this will provide a chance for students to form teams with five other members and combine their skills to fight for a side.

If all of that does not give a sense of enthusiasm, first years will get to suit up.

Beyond intra-mooting, the opportunity to bridge out to nationwide competitions will also be provided. Mooting is not only a great resume builder, but also an enjoyable way to exercise what you learnt in lectures and tutorials.

As first year students progress to their later years, they are able to select electives based on their specific legal interests. For students interested in mergers and acquisitions, the corporations law unit is something to look forward to. Choosing these elective units

will allow these students, once confused about their direction, to find or have their true calling affirmed.

Tailored suits, thick bowties, elegant dresses, quaffed hair and a room full of laughs, smiles and quick glances. Last but definitely not least, Law Ball is another event first year students count down the days for. Unlike the previously experienced ‘Year 12 Formal’, Law Ball is a sophisticated and classy event. The event unites all years of students, which establishes and enables us to aspire towards those who are closer to finishing their degrees and entering the job market (this includes crazy party antics which, as we know, is all part of a law graduate’s capabilities).

Overall, the experience of law has definitely been a wild and varied one.

First year students have come together in moments panic over their assessments and even afterwards to share a drink, or two, or twenty. Aside from the enjoyable events, students have really grasped the skills needed to survive these upcoming years. Not only has it allowed some to really understand the TV serials they watch, but instil a true appreciation for the judicial system, regardless of how complicated it may seem at times. For now, I can predict that these upcoming semesters may have their tough times, as contracts does seem very daunting, but I know I will have the MULS family and my own determination and skills to get me through.

LAW STUDENTS

LIKE

by Luke Richards

IT’S A DRINKING PROFESSION! It’s a drinking profession and we all know it. But does this delightful axiom conjure up visions of hedonistic boozy affairs, where suit-clad wordsmiths exchange witticisms over clinking glasses filled with heady effervescent aromas? Or does it strike you dumb with a bland fear of health and psychological concerns about our chosen career path? If you happened to have been tricked into thinking the latter, then be of good cheer! The drinking profession promises far more than the tee totalling one ever could.

The fact that our chosen profession is supported (or propped-up if you must) by the distilled enchantments of the vine and the hop should be taken as a good omen. For instance, can you imagine an accounting seminar where they caution you of the evils of the bottle in the balance-

sheet business? No. Why? Because law is cool, and accountants aren’t. Moreover, in a large longitudinal study published in The New England Journal of Medicine, researchers demonstrated that a daily intake of a couple of units a day, not just of red wine, but of any alcoholic beverage would significantly reduce the risk of a heart attack. The daily drink. Not in moderation – but in constant intoxication!

Red wine will of course increase your H.D.L. (good cholesterol) whilst reducing your L.D.L. (bad cholesterol), and almost any drink will assist in staving off diabetes.

Yet more importantly than any health benefits, is the inspiration and freedom that comes with drinking. The Greeks called this entheos, "full of the god, inspired, possessed" it is where we get our English word for ‘enthusiasm’ and it

is from this buzz that our cerebral cortex forms new thoughts and appreciations for others. Food becomes tastier, dull people become more interesting (or at least more tolerable) and reading satisfies in all new ways. After all, Jesus first (and best) miracle was that of turning water into wine and has McDonald’s ever tasted as good as it does at 3am?

So whilst the naysayers and legal troglodytes may still be muttering sullenly about our profession’s ‘vice’ and insisting all you really need is good detox and some Wheatgerm extract. Tell them to put down their collective colonic hoses and come out for a drink and a good conversation.

Our profession is a drinking profession and where all the better for it.

The Brief | Volume 20, Edition 3

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CROSSWORD

BY CONNOR HOGG

ACROSS

DOWN

1. Longest serving Chief Justice of the High Court

2. Actor who apparently couldn’t handle the truth in the trial scene in A Few Good Men

4. Murderer and former Thane of Glamis with equally evil wife 8. The number of times the Queen has sued the newspaper The Sun 9. Government body responsible for regulating TV Stations 10. Creedence Clearwater Revival singer whose former record label sued him for a song he wrote infringing on the copyright of another song he later wrote 11. The current Lord Mayor of London (5,5) 13. Judge Judy’s surname 16. Play based on the Salem Witch Trials, The ____ 19. Fast food chain embroiled in the longest running trial in English history

3. Number of successful referendums in Australian history 5. City in Turkey that attempted to sue Christopher Nolan and Warner Bros for a film they had made 6. Country which will hold an independence referendum in September 7. U.S. Secretary of State who party to the lawsuit that established the doctrine of judicial review 12. Judicial order from a superior court to an inferior one to perform a public duty 13. Jewish judicial body that conducted the trial of Jesus 14. House of Parliament with 779 present seats 15. A 1960s cartoon Birdman who later became an Attorneyat-Law 17. Surname of first Indigenous barrister to appear before the High Court 18. High Court Justice that has previously been a stand in host on ABC Radio National

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The Brief | Volume 20, Edition 3

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The Brief | Volume 20, Edition 3