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Purely Dicta Issue 2, 2012

E D I TO R S

Felicity Baldwin Gabriela Aloisio ASSISTANT EDITORS

Ariane Garside Bianca Caserta Thibaud Arbes Dupuy D E S I G N A N D L AYO U T

Ben Sturrock CO V E R D E S I G N

Andy Chislett S P E C I A L T H A N K S G O TO T H E F O L LO W I N G CO N T R I B U TO R S

Pat Easton, Matt Curnow, Mika Tsoi, Benjamin Hine, Jaani Riordan, Marcus Hannah, Jessica Dawson-Field, MLS Elevator Gossip, Claire Marshall, Ariane Garside, Andy Chislett, Lachie McKenzie, Wendy Liao and Pat Santamaria

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T he R egulars

Editors’ Welcome Gabriela Aloisio and Felicity Baldwin

Obiter Dictum

L ifestyle

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Hello Yogie

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Eeny, Meeny, Miny, Moe

L ife B eyond L aw S chool

So Long And Thanks For All The Free Barbeques Ariane Garside

Jaani... The Man, The Myth, The Legend! Jaani Riordan Interview

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Jessica Dawson-Field

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Claire Marshall

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Fifty Shades of Grey: Is the Sex Contract Legally Enforceable?

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B usiness

Career Advice From Walter White Marcus Hannah

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E ntertain m ent

Non-Law Practice Careers — Choosing The ACCC Benjamin Hine

Clerkship Rejection Letter Matthew Curnow

Kick-Starting Your Career After Rejection Benjamin Hine

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Law School’s Got Talent Andy Chislett

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Bernie: A Review

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A Poem

Mika Tsoi

Pat Santamaria

28 30 31

T he I ssues

HIV Anonymous

A Dickhead’s Guide II Pat Easton

Censor Facebook, Ensure Justice Lachie McKenzie

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T he R egulars

Editors’ Welcome Welcome to Issue 2 of Purely Dicta 2012. If you love what you saw in issue 1 and are hungry for more, then you’ve come to the right place! This issue is themed ‘Life beyond law school’ and we will be hearing from a few of our very own on their thoughts about life and the law. Also, for those of you who are keen on taking short cuts, we will be catching up with the legend himself, Jaani, to ask him a few questions we’ve been dying to know the answer to. We’ll bring you some pointers on take-home exams (Elise Bant knows we need it); tackle the hard hitting issues surrounding HIV; chat yoga; provide you with a response, sticking it to those god damn clerkship rejections and much more! We hope you enjoy reading and encourage you to write in if there is anything in this edition that interests or offends you, or if you just want to tell us what a great job we did (we only accept positive feedback). We would also like to encourage those who like what Purely Dicta is about to apply for an Editorial Position in 2013! For more details visit www.mulss.com. Cheers, Flick and Gabi

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ObiterDictum Latin, deconstructed, in case of need

age quod agis

If something is worth doing, it is worth doing well. See: the Q&A with Jaani

abyssus abyssum invocat

Deeper thinking leads to deeper understanding. Not necessarily true, especially in Legal Theory, where deeper thinking leads to‌ more thinking.

fidite nemini

Trust yourself and your horse. The Spring Racing Carnival is nearly upon us!

ignorantia legis non excusat

Ignorance of the law is no excuse. Also known as, make sure your notes are good before your exam.

non semper erit aestas

It will not always be summer. No shit. No wonder Latin is a dead language.

pacta sunt servanda

Agreements must be honoured. Well that depends if they’re valid. See our discussion on the sex contract in Fifty Shades of Grey.

qui dormit non peccat

He who sleeps does not sin. We prefer, he who sleeps has somehow managed to get all his work done, or goes to Monash.

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L ife B eyond L aw S chool

SoLongAndThanksFor AllTheFreeBarbeques Ariane Garside

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here is a near-inhuman capacity in many law students for denial on both the micro and macro level. Six thousand word research essay due in a week? Still time to marathon the somewhat mediocre fifth season of the West Wing (save the sixth season and Santos for a time when stress levels don’t prohibit full enjoyment of the verbose trials and witty tribulations of idealists on the campaign trail). Given time, we will ensure that time is stretched to the fullest procrastination capacity. But it is the larger scale of denial I’m focused on at the moment. There is an ongoing - though very lazy and fairly hackneyed – joke in the law school that we all have somewhere along the way lost our lives. That ‘normal’ people, whoever they are, are off befriending friends, drinking drinks, being Hollywood-film-worthy and generally seizing life by the jugular, while us poor devils are trapped by our own brilliance in the (literal) ivory tower that is Melbourne Law School. Of course there is nothing new under the sun, and that runs especially true for law students; anything the rest

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of humanity suffers, we have to suffer it better and with greater and more painstaking attention to detail. Now, let’s see how many philosophical buzz-words I can fit into one sentence: the universal inertia of self-aware and selfpropagating mortality results in a Sisyphean love and simultaneous loathing of our present, in favour of nostalgia, and its inverse, the longing for a Utopian (or for those of a particularly nihilistic bent, Dystopian) future. What I actually mean is that many of us prefer to excuse the present by envisioning the future as a wondrous time, when our current struggles cease and we have, for lack of a better term, the life we are currently lacking. This could be anything, from a high-flying corporate job in a top-tier, to working on the ground handing out UN aid packages to starving populaces, to partying it up on the yacht of an exiled Croatian general, building a family with someone you love, running your own bookshop that stocks only vintage Game of Thrones novels, or - if the LSGT is anything to go by - there is a goodly proportion of us who just want to be Kanye West when we grow up.


Photo: Ben Sturrock

My point is that in our minds we live multiple times, always reaching for the next one, the big one, the life where we finally can just live. And law school is seen as one of the inescapable obstacles to that next life. To those of us who use this excuse, it’s a false comfort. We all know, to some degree or another, depending on our skill with denial, that all of life is just finding ways to pass the time, and just because we are in law school - which is by definition a waiting room for the next section of our lives - that does not make it any less ‘real’ than any other part or time of life. For a lot of people, all of everything they do at this point is directed towards resume building; be it sports, competitions, the self-interested altruism of volunteering, extreme sport studying, socializing with other law folk or becoming obsessed with the apocalypse that is Not Getting Any Clerkships. And that’s perfectly fine and admirable, because all that is life-making; it is future oriented. More than that, it is without fail the kinds of things we will do anyway throughout our lives, just to pass the time with

some small measure of meaning or pleasure. It doesn’t so much irritate me as it gets me down when people cheapen what we do while here the law school by labelling it all as placeholder material for some greater beyond world. The law school may not be like the rest of the world, but it is a part of it, and we don’t get to excuse any kind of fear or laziness or stupendous stagnation we go through on the grounds that for now, we live in limbo. Law school is not limbo, although I wouldn’t put it past the universe to have sentimentally and somewhat accurately categorized it as purgatory. In the absence of any physical proof of this, however, I’d like to leave you with a somewhat vague and unintentionally atheistic sounding point. It’s quite small and not at all groundbreaking, but easy to forget and important to remember: There is no big secret to life waiting on the other side of the law school. And that’s brilliant. ♦

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L ife B eyond L aw S chool

Jaani...TheMan,The Myth,TheLegend! Interview with Jaani Riordan

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e took an afternoon off from law school, visiting Oxford to drop in on Jaani and ask him a few questions! For those of you who are too busy slaving away making your own notes and don’t know him, Jaani is the hero behind www.jaani.net, saving our lives, one case summary at a time. Firstly, on behalf of MLS students, thank you for your notes website. Did you have any idea students were still using your notes (and that you are a cult hero at MLS)? You’re welcome! According to my website stats, my notes receive about 300,000 page views each year, but I really can’t believe anyone still uses them! Although I do receive grateful emails from time to time, I generally just assumed that the notes would enjoy a slow slide into obscurity. Some students say that they use your notes to learn off, rather than the text book or the lectures. What are your thoughts on this? I think they are probably not making the best use of their course fees. The notes were composed — usually in a mad rush during SWOTVAC — based on my reading and frequently limited understanding of the materials. They’re full of holes, errors, and archaisms. They really shouldn’t be relied upon for any serious purpose. A good textbook — or the dynamic environment of a lecture — was really a much better way to learn for me personally. Did you study a double degree or just law? I studied law/computer science and graduated from Melbourne Law School in 2007. What extra-curricular activities did you participate in at law school? The usual stuff — Law Review, debating, orchestra, fencing, photography, tennis. I did an exchange semester in the Netherlands and tutored at Ormond College in my final year. I also ran a small web consulting business to pay the bills.

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Did you have any career objectives when you were studying law? Not really; I did the clerkship rigmarole like everyone else, but always assumed I would eventually do something other than law. I ended up taking a grad position, which I really enjoyed, but left to co-found a start-up and pursue doctoral studies abroad. What prompted you to create the notes website? Writing good notes takes time, and it seems something of a waste to burn or bury them after exams. I’ve never made any money from them — apart from the odd donation of a tenner here and there — and I simply thought they might be useful to other students. In most cases, I put them online before my own exams. I’ve since been contacted by people ranging from students to self-represented litigants and law reform commissioners expressing their thanks, so I’m glad I did. How did you make time for all of the activities you do? What kind of skills do you employ to study efficiently? I think being busy enforces its own kind of efficiency. I had to travel about 90 minutes each way to uni, so I kept up with my readings on the tram. I took basic notes during lectures, highlighted cases and articles as I went, then reread everything and wrote the final notes (and an issues checklist of maybe 5–10 pages) during SWOTVAC. All the extracurricular stuff I did because I loved it. It did mean prioritising some things over others, though. Did you have any assistance preparing the notes, or are they all your own work? I’m enormously grateful to my lecturers and tutors at MLS. They undoubtedly contributed to the structure and taxonomies used in the notes, as well as many of the critical remarks. Apart from quotes and extracts, I wrote the notes myself, but the ideas were clearly drawn from a wide range of primary and secondary sources, lecture slides, class notes, and so on. In addition to the general acknowledgments, I would like to get around to footnoting


I recently wrote updated sets on contract and trusts, for example, which I used as a basis for lecturing undergraduates at Oxford. They have a correspondingly Anglocentric focus, but might be useful in filling some gaps, so I might upload them. Wider updates would be a considerable undertaking. If anyone wants to volunteer... What is the password to unlock the PDFs? I can’t count the number of times I’ve been asked this! The answer is that I honestly can’t remember. They were left on an old computer in Melbourne, and I have since moved to the UK. The PDFs started getting locked after I caught someone trying to sell the notes as their own — not cool. There is an urban legend that there is an error in the Quistclose notes, and in 2010 the entire cohort used your notes and all made the same error in the Trusts exam, prompting the teachers to change their marking for that question. Firstly, have you heard that story? And secondly, have any lecturers contacted you in regards to requesting your notes be taken offline? (We don’t know whether that story is actually true or not). I’m sure there are many errors, but this ‘legend’ is news to me. Quistclose, Twinsectra and the like are really quite straightforward cases (though their interpretation and classification remain subjects of lively debate) — just read them, as well as the wealth of exceptionally astute commentary by Lord Millett, Robert Chambers and others. My ideas as a third year student were incredibly ill-formed, now that I look back on them. Nobody has ever asked me to remove the notes. To the extent they have any impact at all, I would hope that they raise, and not lower, the average standard of exam responses. them more comprehensively at some stage. What are your views on collusion? Is that a trick question? Collusion involves crossing the line from lively verbal debate of ideas to concerted flouting of the rules. Don’t do it, kids. Would you be comfortable revealing to our audience what the lowest and highest law marks you ever received at MLS were? No-one likes a boaster, so — no. Do you have any plans to update your notes to include changes and new material from the last 2-3 years? These missing parts make it a little difficult for students who use your notes in exams!

Your name is very unusual, is there a story behind it/where is it from? It’s Hindi. Hippie parents, so I rebelled and went into law. What a cliché. We hear you’re at Oxford now, can you tell us what you’re up to? I’ve just finished a doctorate in internet law, which examined the secondary liability of intermediaries (such as Facebook, Google, Telstra and YouTube) for third parties’ wrongdoing. Now I’m going to the London Bar and am the director of a start-up that streams live concerts over the web. Do you have any final words for your fans at MLS? Age quod agis. ♦

I have thought about updating them at various points.

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L ife B eyond L aw S chool

Non-LawPracticeCareers —ChoosingTheACCC Benjamin Hine

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t is often the case that a certain percentage of those studying law may not wish to enter practice.

How does your knowledge of substantive law assist you?

While most law students commence study with every intention of legal practice, the number of students studying law with the intention of working outside the boundaries of traditional practice is rising. Volumes of articles and other publications have previously explored the benefits of a law degree in professions other than the law. This interview will not cover such familiar territory, but rather considers the path from law to related employment in the current market. Max Daly talks about his experience beginning the Australian Competition and Consumer Commission (ACCC) Graduate Program in February 2012.

A law degree is certainly not a prerequisite to a career with the ACCC. ACCC employees can also be economists, accountants, engineers and more. However, all of the powers and responsibilities of the ACCC derive from the Competition and Consumer Act 2010 (Cth) and other industry specific legislation. Knowledge of the powers and operation of legislation is useful, especially about matters such as enforcement. The ACCC has internal law units to provide advice to line areas on request. However, analysis on enforcement, regulatory or policy issues is undertaken in the relevant work areas by analysts who have a range of knowledge and expertise, including legal qualifications.

Did you enrol in law with the intention of working in a lawrelated, but non-practice, field?

How did you improve your chances of being selected for a non-practice job while studying?

No. To be honest, when I commenced study I entered law because I had high school leaving marks and had no idea what I wanted to do. Law seemed no worse than any other option on hand. That being said, I had no preconception about wanting to practice. I didn’t stop to think about serious career planning until at least third year. As I progressed through study, I became less and less interested in practicing and decided to explore pathways that would enable me to help others using my legal skills and experience.

I made an effort to be involved with University life on a broader scale than study alone. I volunteered on student representative bodies, tutored for the University and went on an overseas exchange.

What key skills do you use as a Graduate at the ACCC? There are the usual skills that are said to arise from legal study – organisation, time management, oral advocacy and client services. I find though that I use two skills more than others in my work. I think that legal training has enhanced my ability to problem-solve creatively, which is of great benefit. When considering regulation of markets and policy development questions, being able to frame complex ideas in simple terms is extremely useful. The other key skills I use day to day in my position are researching and writing. Clear and concise written communication is beneficial in any professional career.

While many students were applying for clerkships, I decided to study overseas and travel throughout Europe. Not only did I want to enjoy the usual exchange experiences, but I wanted to meaningfully engage in cultural exchange and learning. The interest in well rounded candidates with interesting life experiences is not limited to law firms, all employers want to see initiative and distinguishing features of their applicants. When applying for the job, did you invoke different strategies than those used in the legal market? There is no secret to any of this, but I did my research properly. I knew what the goals of the ACCC are, what it valued, what it achieved and what it wanted to achieve in the future. I demonstrated how my skills would enable furtherance of those objectives and how my experience and values were suited to the organisation. What are the benefits and drawbacks of your job compared to legal practice?

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I am involved with an amazing variety of work in both subject matter and format. It might range from analysing submissions on pricing structures for the National Broadband Network to investigating breaches of the Australian Consumer Law. The work that I do is not only extremely interesting and often topical, but it is rewarding knowing that I am assisting both businesses and consumers in understanding and abiding their rights and responsibilities in the competitive market. In terms of drawbacks, it might be said that acting as a member of a very large organisation means that close, long

term professional relationships are perhaps less likely to develop. This has not been my experience, but it is possible in any very large organisation. ♦ Thank you to Maxwell Daly for talking to us for this article and to the ACCC for agreeing to allow its publication. This article is drafted for the sole purpose and production in Purely Dicta, The Melbourne Law Students’ Society publication. It may not be published or reproduced without express permission of the author.

THE MARKER The ACCC has made a short fiction film called The Marker to engage people at all levels of business about what cartel conduct involves and the devastating impact that cartels can have on participants. The Marker shows how cartels can ruin relationships, careers, reputations and long term financial security, and may ultimately land guilty parties in jail.

Over half of business people do not know that cartel conduct is a criminal offence; and

Despite being told the legal consequences, almost one in 10 business people would be likely to engage in cartel conduct if the opportunity presented itself. Reproduced from the ACCC Website

The ACCC has made The Marker partly in response to research conducted by the University of Melbourne Law School in 2010 that showed:

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L ife B eyond L aw S chool

The Offices of Cheet, Lai & Steel, Melbourne, VIC 3000 Dear Graduate Recruitment Consultant,

Offer of Rejection to Clerkship Programme, 2012 Thank you for your interest in rejecting my application for a clerkship with Cheet, Lai & Steel. This year there were many promising rejections, and yours was assessed against a pool of highly uninterested candidates. After careful review I regret to inform you that I am proceeding with an interview with your firm. Regrettably, whilst I would like to offer every firm an opportunity to reject me it simply isn’t possible given the tremendous volume of applications I have submitted this year. This year over 50 firms in Australia, Hong Kong and the United Kingdom competed for just two possible rejections. Whilst I would like to extend to every firm the opportunity to decline personal feedback I am regrettably unable to do so, given the sheer variety of reasons given for each unsuccessful rejection. Some of the reasons that your rejection was unsuccessful this year include your requirements of: •

A High Court Justice’s reference;

Cheryl Saunders’ grade point average;

Perfect speling;

5 years experience during my 3 year degree in defusing land-mines in the developing world;

A heart-felt but commercially adapted anecdote of how I’ve made a lasting difference in the lives of others by my mid-20s;

‘Commercial Awareness’ including a knowledge of inherently private transactions that by their nature are not disclosed to the public, and by disclosure would be a serious breach of ethical and fiduciary duties by any lawyer involved;

Familiarity with commercial and financial law from my 12 weeks of Obligations and Contracts respectively, and my background as a Bachelor of Psychology;

Familiarity with your firm’s culture, which appears to be the website you copied from another unsuccessful rejection candidate interspersed with quotations from my undergraduate management textbook and pretty colours.

Accordingly, I wish you every success in our future relationship and hope that you were successful in your rejections elsewhere. I invite you to apply to reject me again as a clerk or graduate trainee in 2013. Sincerely, C. W. Rumons

Matthew Curnow

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Kick-StartingYour CareerAfterRejection Benjamin Hine

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ayley is a South Australian lawyer who did not obtain an immediate graduate offer as a lawyer upon graduation. She speaks openly about her path to securing a position as a solicitor after graduating. Did you intend to practice while studying law? Yes. I have always wanted to practice law and my previous study and work helped prepare me for this role. I worked in case management and social work at Families SA prior to studying law. I love the courtroom and the criminal justice system is my passion. When you were not successful in obtaining a legal practice position, what prompted you to accept a position outside legal practice? I knew that finding a legal position straight out of university was going to be difficult. Positions at law firms are rare and very competitive, increasingly so in the past few years. I knew that in order to fulfill my passion to practice I would need an ‘edge’ over other graduates. I had studied a double degree which I knew would be useful, but many students opt for a double degree (and some universities require it!) so I knew I would need to do more to distinguish myself. I decided to look for position in workplace compensation as it is not a popular field. I applied at various firms and non-practice roles and accepted a position in a large insurance company as a case worker in injured worker rehabilitation. Within my role at the insurance company, I gained additional inside knowledge into the workers compensation system, legislation and case law. Being a successful lawyer involves far more than knowing the law, relevant rules and procedures. It is important to be able to manage client relationships, conflict and competing priorities. By accepting a position as a case manager I was able to develop my skills in client interviewing, negotiation, building rapport with clients and stakeholders, administration and case management as a whole. When at your non-practice job, what steps did you take to improve your chances of entering practice? During my first week as a case manager I approached the Department Manager and expressed my interest in the legal disputes team. Over a casual coffee I told him my

strengths, my law degree, previous volunteer experience in an industrial relations legal centre and how I could contribute to this team generally. After successfully making my intention known and subsequently working hard, I was moved into the legal disputes team within 2 months. In the legal disputes team I was in constant communication with clients, solicitors, doctors, rehabilitation providers and the Industrial Relations Tribunal. I further networked with solicitors at every available opportunity. I attended all law society CPD sessions, private firm functions and university topical debates where possible. How many law jobs did you apply for and what was your approach? I stayed at the insurance firm for just over 6 months and then started applying diligently to all law firms in the areas of workplace compensation, criminal law and family law. I mailed over 200 applications which focused on my strengths and why I would be suited to their firm. It was crucial that I draw the links of my particular skills and the suitability of them to that firm. I also emailed about 50 applications. I contacted all of my networks, and enquired about graduate solicitor positions. I would receive rejection letters every week, which some could consider depressing, but I looked at it as a game. I knew that with each rejection I would come closer to succeeding. I remained positive, and even received a letter stating due to my constant persistence I would be granted an interview. Persistence is the key to gaining employment. Any other points worth mentioning for students who are contemplating accepting a non-practice job with a view to later entering practice? Many graduates finish a law degree and expect to be hired by their dream firm without delay. However, I think there are some real benefits to going into a non law position once graduating and after about 6 months or a year moving into the legal field. The key is to go into an area that is surrounded by legislation or case law, whatever area that may be. Make it your own and embrace the position. Entering the legal field is a marathon not a race. Every step in your career is an experience that you can learn from, even if it is not directly law. Look for the positives in the position and you will go far. And never underestimate the power of networking. ♌

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T he I ssues

HIV Anonymous

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hadn’t seen her in a few weeks. She had been sick and it was taking a long time for her to get better. She thought she had the flu. Those were the symptoms anyway but no matter what she tried she didn’t seem to be able to shake it off. When a rash had started to develop she had wisely decided it was time to check in to the local hospital. I was pretty busy at the time with the usual summer activities of work and parties, enjoying the brief break from university. I was concerned about her and wanted her to get better but really we were only seeing each other very casually. The extent of our relationship was regular sex with sporadic texting in between. At any rate, surely she would start to feel better soon. Then she called me. I could instantly tell something was wrong by her voice, it trembled and I could hear her barely choke back tears as she told me the single most terrifying thing that anyone has ever said to me: She told me that the hospital had run a series of tests and she had come back positive for HIV.

The Beginning Why was this happening to me? Australian girls don’t have HIV, especially not private school girls who attend university. HIV was supposed to be a disease that existed in the abstract, or the 80s. I was aware that it was real; people were dying, there were fundraisers, I bought a ribbon once but nothing in my life had prepared me for dealing with HIV on such a personal level. Her voice snapped me out of my own self-destructive thoughts. She was apologising to me and my heart instantly broke. Whatever I was going through didn’t compare to what was happening to her. Her life had just changed forever and now she was crying with guilt at the thought she may have infected me too. I managed to put aside my own worries momentarily to attempt to reassure this girl who just a few weeks earlier I had been holding in bed. She told me she expected me to be angry with her but anger was one emotion I never felt through the entire experience. I didn’t want to know how she got it. It wasn’t my business and most importantly I didn’t want to force her to tell me. However she had become infected was a mistake that she had to live with her for the rest of her life. Any anger from

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me would not make her feel worse than her guilt already did. What mattered was that she got the support she needed and I got tested as soon as possible. We finished the call quickly; there was nothing else really to say. She was devastated and I was well on my way to an anxiety attack.

The Aftermath The first person you call in a crisis is the best reflection of who the important people are in your life. My first call was of course to Mum. I was crying by the time she picked up the phone and blurted out everything I had just been told. Her response was exactly what I needed. She simply said she’d be right over and everything would be ok. It was past midnight now and I paced the backyard chain smoking until she arrived. Before, her hugs had always made me feel like everything would be alright; this time was different. I could tell that she was genuinely scared for me as well, and probably knew even less than me about the disease I was potentially facing. The best thing she did for me that night was holding back the questions I knew she wanted to ask. Who is the girl? Did you use protection? How many times did you sleep with her? How come I don’t know anything about this girl? Instead, we sat down at the computer and began to do what should have been forced upon me at high school, learn about HIV. The good news was that the risks of transmission were low and typically men were less prone to infection than women (just another example of where women are disadvantaged in life for no other reason than their gender). The bad news was that there had to be a three-month gap between the exposure incident and accurate test results. Some countries have reduced the wait to six weeks but three months is still the recognized wait time to be sure that there has been no infection. A quick glance at the calendar and a few minutes of rough calculations later and I worked out the last time I was exposed. Seventeen days. How on earth was I going to make it through the next day let alone the next month let alone the next ten weeks without knowing? I couldn’t believe that in this day and age there was no faster way of testing available to me.

The Wait I’m still not sure how I got through the wait for those results.


Clearly dating was off limits, if I wasn’t sure of my status then there was no chance I would endanger somebody else. I didn’t want to tell my friends even, there was nothing they could do to help and the last thing I wanted was them to worry about me as well. I did end up confiding in a handful of my closest confidants for purely pragmatic reasons; I wanted to avoid the inevitable harassment that would come from retreating into isolation for several months. As time passed the instances each day when my mind did not think about HIV became more common. As cliché as it may be, time is one of the best healers and I was able to slowly focus on other things besides my results. Not a day went by however where I didn’t research HIV on the Internet. The more I read and learnt the more I realized how little I knew about such a serious threat to people everywhere. As I sat waiting in the doctor’s office I started making outrageous promises in return for that negative test result I so wanted. I am not sure who I was wheeling and dealing with but they were subjected to outrageous promises to never sleep with a girl again or to commit the rest of my life to serving others. As my wait became unbearably long with each passing second, I became more realistic and earnest in my prayers. When my name was finally called and I followed the doctor into his office I made a simple promise to myself; to try and treat my health with more respect if I could just escape this one instance.

is something to be ashamed of, but because unfortunately there is still a stigma attached to HIV and my friend deserves to share her story when she's ready. Why did I feel the need to write this article? I eventually told my friends about my exposure and results because I could not stand by and hear about their unprotected sexual encounters any longer. There is an ingrained ignorance within young Australians and I too was guilty of that same crime. Hopefully this article though goes some way to educating readers about the harsh reality that anyone can contract HIV or other sexually transmitted diseases. For many people, acquiring HIV is symptomless and can lay dormant for up to ten years before any outward signs become visible. As well as using protection there is a need to encourage testing in young Australians as no matter how safe you believe a partner to be, the reality is that anyone can become a victim of HIV. Rather than adopting scare tactics let me just speak from the heart and say that I was motivated to write this because I want to help even in a small way to stopping others going through the agonising uncertainty that I endured. The information is out there and education shouldn’t have to wait until it is too late. Love each other, be safe and get tested regularly. ♦

The Result For the record, it was negative. I felt born again as relief flooded through my body and I could not stop smiling as I breathed out a breath I did not know I had been holding for the past ten weeks. The handful of close friends I’d confided in needed to be told the good news but first I wanted to celebrate with mum. She had been with me every step of the way, sharing my sleepless nights and my worry and I imagined her face awash with relief as we shared a celebratory moment. The reality was different. She was over the moon but I found my own mood couldn’t match hers. As soon as the worry of the wait was over my mind instantly turned back to the girl who had not been given the same lucky break that I had. For the past ten weeks I had tried everything I could to not think about her but now she was all I thought about again.

The Lesson Writing this article is the culmination of my experience. I would love to say that it has been cathartic but the truth is that each word has brought back the same feelings of guilt I felt on the day I got my results. Guilt that I got a second chance while the girl I was with is still dealing with what is effectively a life sentence. This piece will be submitted anonymously, not because it

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T he I ssues

HIV — TheFacts

What is HIV/AIDS?

H

IV stands for Human Immunodeficiency Virus. HIV is an infection that attacks the immune system and weakens the body’s ability to fight infections. Without treatment, after some years, a person who has HIV can’t fight off some infections and cancers. This stage of HIV is called AIDS (Acquired Immune Deficiency Syndrome). There is no cure for HIV. An infected person can pass HIV on to others for the rest of their life.

How do you get? There are three main ways to become infected with HIV: •

By having unprotected anal, vaginal or oral sex with an infected person. Unprotected sex is sex without using a condom or dental dam.

When infected blood gets into another person’s bloodstream.

From an infected woman to her baby, during pregnancy or birth, or from breastfeeding.

Unsafe behaviours The highest risk for both males and females is unprotected anal sex. Unprotected vaginal sex is also a risk. Sharing injecting equipment, particularly needles and syringes, can put HIV directly into your bloodstream.

You are also at risk if your sexual partner shares injecting equipment, even if you don’t. Unprotected oral sex is a risk, particularly if the mouth or genital area has any cuts

Signs and symptoms Soon after being infected with HIV, some people feel as if they have the flu: fever, headache, tiredness and a rash. Others may not have any symptoms. That’s why, if you could be at risk, an HIV test is the only way to know if you’ve been infected. People with HIV can feel and look healthy. Many do not realise they have it because they don’t see or feel anything wrong. Without knowing it, they can pass HIV on to their partners. As the virus keeps attacking the immune system, a person will develop symptoms of the disease. These include constant tiredness, swollen glands, rapid weight loss, night sweats, memory loss and diarrhoea. These symptoms can last for a long time. When the immune system is badly damaged, cancers, other infections, and brain damage can occur. This is called AIDS.

Checking it out The only way to find out if you have been infected with HIV is to have a blood test. However, for a short period just after HIV enters the body, it can’t be picked up with a test. So if your result is negative, you will need to have the test again after three months. If you are having a test, you will be given information and be able to ask questions before and after to make sure that

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if used correctly with a water-based lubricant, help prevent fluids passing from one person to another. Always use a condom and dental dam until you are totally sure that both you and your partner do not have an STI.

you fully understand what both a positive and a negative result mean. The doctor will give you the test results face-to-face, not by phone or letter. All information about the test will be kept confidential (private). •

Don’t inject drugs. If you do, never share needles, syringes, filters, water or spoons. Wash your hands or swab your fingers before touching another person’s injection site. Always use new, clean needles and syringes. You can get these from most chemists, needle and syringe exchange outlets, and at country hospitals after hours.

Pregnant women can get treatment to reduce the chances of the baby getting HIV — you must tell your doctor if you’re pregnant and have HIV.

Limit your sex partners. The fewer people you have sex with, the lower the risk of having sex with someone who has HIV. Have a long-term relationship where neither of you is already infected, and neither of you have other partners.

There are services for people with HIV that provide medical, social, emotional and other forms of support — ­ some are listed at the end of this fact sheet.

Before having any body art (such as tattooing or piercing) make sure the body artist uses only sterilised equipment, and new razors and needles each time.

Don’t share personal items, toothbrushes and dental floss.

Have regular STI check-ups.

Alcohol and other drugs can affect your sexual behaviour. If you are under the influence of alcohol or other drugs, it may be better to avoid sex.

If you do have HIV, all your sexual partners will also need to be checked. This is always done carefully, respecting everyone’s confidentiality.

Treatment Currently, there is no cure for HIV. However, the illness can be managed. Many people with HIV live for years, with daily treatment. This is why, if you are at risk, you need to get tested early.

Protecting yourself and your partner The safest ways to protect against HIV and other sexually transmitted infections (STIs) are to: •

Always practise safe sex. Safe sex means avoiding sexual contact where the semen, blood or vaginal fluids of one person passes directly into the body of another person. Try alternatives to penetrative sex, and ways to have sexual enjoyment, without putting yourself and your partner at risk. Always use condoms and dental dams during sexual intercourse and oral sex. Condoms and dental dams,

such

as

razors,

Talking about STIs can be difficult, but any person you have sex with has a right to know if you have an STI. Discuss it when you are feeling relaxed and confident, not just before you have sex. Your partner will appreciate your honesty and that you don’t want to infect him/her. You have the right to know if they are infected, too. ♦

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T he I ssues

Dickheads’ Guide Volume II

What Not to Post on Facebook During Take-Home Exams Rule 1

by Pat Easton

Any list of dos and don’ts must never, ever suggest a Fight Club sequel. Rule 2 Do not post on Facebook during a take-home exam about your level of completion. Rule 3 Any student at Melbourne Law School who posts on Facebook about a take-home exam is hereby known as a ‘dickhead’ if: •

they also exhibit signs of being near completion; or

they lament the amount of time left to agonise over their near-completed or completed work; or

they kid about being completed; or

they refer to looming courses in the subsequent semester.

Rule 4 Any student who, whilst not satisfying a criterion of Rule 3, repeatedly posts on Facebook during a takehome exam and is suspected of subsequently attaining a mark above 80 shall be placed on ‘Dickhead Watch’. Rule 5 Any student that posts a status of ‘Finished!’ or any variant thereupon, with more than 25% of time remaining in the exam shall be presumed to be a ‘Massive Dickhead’. Rule 6 Overly-considered updates regarding the torture of take-home exams are prohibited. Rule 6A – exception to rule 6 Overtly sanctimonious posts for the purpose of preventing whole-cohort paranoia.

1. Signs of being ‘near completion’ include but are not limited to: • asking technical questions about the online submission procedure; • specifying a remaining word count of less than 10% of the total word limit; and • remarking about, commenting upon, alluding to or referencing the AGLC or referencing generally. 2. Ibid. 3. Illustrations of such lamentation include: ‘Sweet, I still have 15 hours to do the exam. Piece of cake… did I forget something?’ 4. Example: ‘I finished on Friday night. I’ve just been kicking back and re-

18

5. 6. 7. 8.

laxing, sipping on some lemonade, eating milky ways and thinking about how easy the property exam is going to be.’ Example: ‘Enjoy tonight everyone cos (sic) our Property text book just arrived in my mail and it’s absolutely disgusting!’ ‘Take-home exam’ shall include the final weekend before the Legal Theory essay is due. The onus of rebutting the presumption rests with the student. Pugnacious posts such as the following may also fall under the Rule 6A exception: ‘Next person to update their status saying they’ve finished and submitted is defriended.’


CensorFacebook, EnsureJustice Lachie McKenzie

S

hould we censor Facebook?

We used it to help the ‘Find Jill Meagher’ campaign, which went viral and cohered a shattered community. Now that Jill has been found, this powerful medium could be jeopardising the case against her alleged rapist and killer. Even before Meagher was found, people were talking about sexual assault, dangerous men around Brunswick, and about stopping violence against women. Many women who previously felt they couldn’t talk to anyone apart from their friends started reporting their experiences to the police, who couldn’t ignore their claims this time. Many men were confronted by the sheer scale of violence women are made to fear at the hands of their brothers. ‘Find Jill Meagher’ was a clear example of how the collective power and wisdom of the public can be used for a social good.

How many innocent women were burnt at the stake for the crime of looking odd, owning cats, or having an unfortunately cackling laugh? How many political dissidents have been disappeared for ‘crimes’ we would applaud today? What about murder? How many people have been framed for a murder they didn’t commit? Even someone admitting to a crime isn’t enough. They might have been blackmailed or had their family threatened with retribution. The point of the legal system is to prevent these injustices from happening. We all felt victimised by the Jill Meagher case. Women felt doubly blamed when men started warning them about walking home alone and dressing in a certain way. Many men were outraged to be associated, if only by sex or gender, with these comments. Many victims were thirsty for justice. About a week after Meagher disappeared, police arrested a 41-year-old man from Coburg.

But the mob is quick to anger. Facebook pages appeared calling for public torture, public execution, rape as punishment, and torture of the family members, of the alleged killer.

They questioned him overnight and formally charged him with the rape and murder of Jillian Meagher. He will appear in court on January 18 for a committal hearing.

Twitter carried the same violent messages.

That’s all anyone knows. It’s all anyone can know. The commentary about the case should stop there.

It was a sorry mix of grief, anger, and poor education.

Clearly it didn’t.

This kind of mob mentality - the need for blame and punishment - seems to have its roots deep in our psyche.

People feel quite strongly that the Internet should be free. Even with their profiles set to public, people act as though they are anonymous, attempting to absolve themselves of responsibility for what they say. Internauts like to think they’re Galileo or Guy Fawkes - “saying what everyone’s thinking.”

When it overcomes the inertia of social convention, the mob calls for a breach of the normal rules. It’s been happening in human societies forever.

Here’s the problem. If a defence lawyer can successfully prove that the public discourse around a case could

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T he I ssues

prejudice a jury against their client, they can have the trial delayed and possibly dismissed.

Victoria Police Chief Ken Lay was appalled at Facebook’s behaviour in relation to the Jill Meagher case.

This seems ridiculous, but only because of the innate assumption that somebody on trial is probably guilty.

Speaking to 3AW’s Neil Mitchell, Lay said that Facebook demanded a court order before considering taking down a prejudicial page relating to Meagher’s alleged killer.

This assumption is in direct contradiction to our justice system, which assumes innocence. It’s a tradition that we should cherish and fight to protect. But as people are more connected than ever, it’s a legal tradition under threat. Conversations that once took place in coffee houses and living rooms now happen on a global forum. Anyone with a computer (most people in Australia) can add their weight to the momentum of public opinion.

The page’s administrator took it down before that was necessary, but the damage was already done. And it went further than that. Blogs, Twitter, and Wikipedia abounded with prejudicial, permanent, comments. If a newspaper published the comments on Facebook it would be sanctioned. So why should Facebook be any different? Society changes before the law does.

On Friday 6 October, Australia’s attorneys-general met to discuss this problem.

What many don’t realise is that they could be liable for “sub judice contempt” for Facebook comments and tweets.

As a result, Victorian Attorney-General Robert Clark will lead the group charged with tackling the problem. Clark emphasised that in this area, the law goes “well beyond state boundaries.”

“Whatever happened to free speech?” they vehemently protest. “I don’t speak Latin,” they rightly point out.

They will set “national guidelines” for social media, but they are also calling for legal teeth.

R.I.P JILL MEAGHER FACEBOOK.COM/RIPJILLMEAGHER

RIP Jill Meagher

321,435 likes

183,132 talking about this

Community “Jill was a strong, beautiful person with a big personality.” RIP Jill.

R.I.P JILL MEAGHER

321k

FACEBOOK.COM/RIPJILLMEAGHER

About

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We have a deep aversion to censorship and stifling free speech. But many don’t understand that free speech involves relative rights, not absolute rights. Privileging one person’s right to speak degrades another’s right to speak. It is illegal to tip-off an investment banker before a company is about to float. It’s called insider-trading. We don’t hear protests for free speech here for a good reason. Free speech is about access to information and balancing individuals’ right to participate in public debate. In the case of the banker, tipping them off gives them a relative advantage at everybody else’s expense. Similarly, by posting comments on Facebook about the Meagher case, we are privileging uninformed, often inarticulate, and usually prejudicial opinions over informed and rational opinions formed upon examination of actual evidence. The balance of rights should always be in favour of the wellreasoned truth, especially where the consequences involve a person’s life and the integrity of the justice system. Digital media has the dual effect of democratising both free speech and dissolving responsibility for speech. Police cannot feasibly prosecute 100,000 people for sub judice contempt. So the mob has safety in numbers.

But what about the publishing platforms like Facebook and Twitter? In Victoria we’ve already seen very public derailing of trials because of prejudicial media attention. Radio broadcaster Derryn Hinch, despite his admirable intentions, delayed the trial of the now-jailed paedophile Michael Glennon. Melbourne lawyer Rob Stary, whose firm defended convicted drug boss Tony Mokbel, points out that social media comments could not only delay a trial, but leave the publisher liable to prosecution for using a “telecommunications device to threaten, abuse or harass a person.” Stary adds that it can lead to the accused “being released on bail because the trial is stayed either permanently or for an indeterminate time,” to the detriment of the public interest and the need for swift justice. We must decide now as a society, as lawyers and lawmakers, what kind of balance we want between free speech and the right to a fair trial. In determining this balance we must consider the rights of the accused, the rights of the victims and society, and the integrity of the legal system. Surely a better way to honour the memory of victims of heinous crimes is to deny the perpetrators a technical defence. ♦

InformationSheet:ContemptofCourt Contempt of court is concerned with words or actions that interfere with the administration of justice or that constitute a disregard for the authority of the court. It operates as a significant restraint on what the media can publish about particular legal proceedings and the courts in general. In Australia, contempt law remains almost entirely in the province of the common law and is essentially uniform throughout the country. The object of sub judice contempt The object of the law of sub judice contempt is to prohibit the publication of material which might prejudice a particular civil or criminal proceeding while that proceeding is still pending. Such publications are regarded as contemptuous because their tendency, and sometimes their object, is to

place at risk the due administration of justice with respect to a particular proceeding. The public interest in protecting the administration of justice can conflict with the public interest in freedom of speech and freedom of the press. The law of sub judice contempt seeks to strike a balance between these competing values. How that balance should be struck is a matter over which opinions in a democratic society will inevitably differ. As a generalisation, it can be said that in cases where the public interest in the administration of justice conflicts with the public interest in freedom of speech, the common law has traditionally favoured the former. For more information see: Butler & Roderick, Australian Media Law, 4th ed, Thomson Reuters.

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L ifestyle

HelloYogie Jess Dawson-Field

‘D

ownface dog’. Into ‘cobra’. And let’s finish with ‘sleeping hero’. I never thought I would be one of those yoga people. Despite being involved in sports teams at school, the idea of meditation and balancing exercises made me anxious. But then I thought: celebrities do it, Oprah does it, hell, even The Beatles did (apparently). So after a stressful day four years ago, I took myself along to my first yoga class and I have never looked back. Now, I am more coordinated which is no mean feat for a person who still struggles with the difference between left and right (embarrassing, I know). Muscles I didn’t even know I had have enabled me to attempt things I never knew I could. And my flexibility, balance and strength have improved four-fold (true fact). Apart from the physical side, yoga has taught me a few other lessons. Firstly, you cannot judge your own worth against someone else, be it in yoga or life. Everyone has their own strengths and weaknesses and you just have to work within and realise your own limitations. Although there is no real end goal in yoga, you need to be committed

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and be prepared to work hard when it counts to keep improving. Sometimes this means leaving behind your fears , sometimes this means attending class even when you don’t feel like it. And sometimes this means trusting people to catch you when you fall, or prop you up in a handstand. Being a part of a class also reminds you that you can’t move through life by being disconnected and insulated from the world. For that hour or so you are part of a community that has chosen to be in the same room, committed to that activity. Being present, mindful and aware of others has been an invaluable lesson particularly when life just seems to keep getting busier. Although yoga is essentially about yourself and your abilities, you can’t be part of a class without being aware of others and what is going on around you; much like you can’t go through life only looking inwards. Finally, and most importantly, yoga has taught me that sometimes when it all seems too difficult, it can help to just breathe, smile and keep on going. Namaste ♦


Eeny,Meeny,Miny,Moe Claire Marshall gives us some guidance on the right coffee to satisfy our plethora of moods

A

run-down law student is a biochemical mish-mash of stress, sugar and caffeine. I credit success at the end of semester to the latter- the glorious legal upper of coffee. At home it’s cheap instant granules with sugar to mask the taste of death and cat urine, but when out I indulge. Here’s an easy guide to what you get with your coffee near law school.

Need: an all-body experience. Fix: Seven Seeds. Down a little lane way across from law school is the caffeinated babe-house that anyone with a bicycle, tattoos and Pitchfork listed bands on their iPhone will adore. With your specialty coffee comes beautiful hipsters. They clutter the ever-packed tables with laptops; sip Magics with their legs adorned with RM Williams and ironically frilled socks, and take your order while taking you in with smouldering eyes behind thick-rimmed glasses. The coffee is wonderful: blends matched to extraction methods; and perfectly poured espresso.

Need: coffee with a conscience. Fix: Kere Kere If you’re not too scared of wandering onto main campus and being eaten by a dreadlocked arts student, Kere Kere delivers wonderful coffee with a social bent. You can choose where the profits from your cup go, and there are often a proliferation of attractive economics types and moustached professors hanging around. A place to ensure you’ll sleep at night and perhaps bag a future husband, all while drinking a beautifully poured, ethical latte.

Need: caffeine on a low-budget. Fix: Pearls Your meals for the past week between Commercial Law and burgeoning insanity have consisted largely of baked beans, instant noodles and cheap chardonnay. You need a coffee with a good slug of reality attached to it. You’re also not ashamed that your drink of choice is a mocha with two sugars, although you’d rather not have a hipster smirk about it. Pearls will give you what you need, without the pretence or contempt of surrounding cafes. Enjoy your cup of chino.

Need: caffeine on a no-budget. Need: quick service, no frills. Fix: Porta Via. This is the go-too for when you can’t stay awake during contract law and need an immediate hit without leaving the grounds for fear you’ll run away and join the circus/a bikie gang. While the service here is often sans a smile, and the music played is on the cross side of cranky, you’ll get a fix fast. They also have coffee cards, which makes me feel like I’m back in suburban Canberra, but in a totally adorable and economical way.

No money, no sleep? No worries. There’s an espresso machine behind the Moot Court. Although I assume it’s not for student use, there’s no sign saying so: and if Thornton v Shoe Lane Parking taught us anything, it’s that unless there’s notice on the outside you should definitely drink the free coffee where you’re going to fail your exams and end up on semi-naked and aging on reality television if you don’t. Note: the author does not condone stealing, but merely recognises the limits of a law student budget.

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L ifestyle

FiftyShadesOfGrey:IsTheSex ContractLegallyEnforceable? Yes, law school can even turn ‘porn for ladies’ into a boring legal analysis *First years, take note: this will probably be on your contracts or legal theory exams. Lecturers are so transparent.

I

n case you’ve been living under a rock, or on level three, or you’ve actually been doing your subject readings (in which case, can you send your notes to lss-purelydicta@ unimelb.edu.au. Thanks!), Fifty Shades of Grey is one of the biggest crazes in mainstream literature today. People like it more than Twilight (thank God; those books were fucking shit). Those familiar with the books will know that one of the central elements of the first instalment is the contract, which is essentially used as a literary device to explicitly lay out the terms of the intimate relationship insisted on by the male protagonist, the eponymous Christian Grey. After the female lead, Anastasia Steele, examined the contract, she matter of factly stated “My research has told me that legally it’s unenforceable” (she’s clearly a first year JD). But is it? True, it is certainly written poorly, but not enough so as to render the contract null and void in its entirety. But I’m getting a bit ahead of myself by jumping ahead to the language and terms of the contract before looking at whether the essential contract elements are present. Let’s play contracts for babies (God, we’re smug). Ok, there’s definitely been an offer: the drafting of the contract and furnishing of it to Ms Steele. However, those of you who have read the first book will be quick to point out that Ms Steele never signed the contract so there was no acceptance. Not to worry, Mr Grey has had his fair share of risqué sexual encounters and informs us that other women with whom he’s been ‘intimately involved’ (he’s clearly not a first year JD), have signed the contract, so there has been acceptance with another party. What about consideration? Yep, it’s there! As we all know, consideration can be a peppercorn, or a whip, whatever takes your fancy. As for the consideration that Ms Steele provides to Mr Grey, there are two theories. Under the

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first, Ms Steele provides Mr Grey with the (immense) pleasure of her company (kind of like an escort service, or Baltic Shipping where they contracted for happiness and enjoyment…although that was a cruise, not a porno). Under the second, Steele works as a model/actress for Grey, performing the kind of acting/role-playing that satisfies the eccentric billionaire’s sexual deviations. Either way, it’s valid consideration. And what consideration did Mr Grey provide? The simplest theory is that Mr Grey provides a service: “to allow the Submissive to explore her sensuality and her limits safely, with due respect and regards for her needs, her limits, and her well-being”. Wow, he is SUCH a gentleman. Although that’s probably consideration enough to form a valid contract, it never hurts to have a back up. And that back up is monetary in nature. The contract specifies that the dominant, Grey, is to provide the submissive, Steele, with a clothing budget, a personal trainer, and costs to cover beauty salon visits (um, where can we find this guy?). Since these costs are incident to the Submissive’s performance under the contract, they cannot be considered independent consideration. As those of you who have read the second book know, Grey buys a car for all of his “submissives.” In fact, he buys the same exact type of car every time (seriously, how do we find him). It if were understood at the formation of the contract that Grey was expected to purchase said car for the Submissive, that would constitute adequate consideration. The parole evidence rule wouldn’t come into play here because: 1.

There isn’t a merger clause; and

2.

Appendix 3 of the contract makes explicit reference to outside evidence.

So we have consideration, but did the parties actually intend to create legal – rather than personal – relations? Well, the fact that such a contract was drafted to begin with seems like a pretty clear indication of the legal relationship created by the document.


There you have it: all four contractual elements are met! But the contract is still unenforceable if its purpose is unlawful. In other words, if the contract were for something illegal – say, paying for sex – it would be unenforceable. For policy reasons, we aren’t allowed to enforce contracts for sex. Such a nanny state. Despite common preconceptions to the contrary, the contract isn’t for sex. True, sex is mentioned a lot. Sex. Sex sex sex, sexy sex sex. However, if a court were to strike out all of the provisions referencing sexual intercourse of any kind, we’d still be left with a cognizable contract. Moreover, any concerns about this being a contract for slavery are unfounded. The dominant-submissive relationship referenced in the contract is purely recreational; the submissive is not actually selling herself as property. So it appears that the contract is, for the most part, legal and binding. But how would one go about enforcing it, and what kinds of remedies could he or she legally seek? Specifically, if the Submissive’s consideration is “to allow [her] to explore her sensuality and her limits safely, with due respect and regard for her needs, her limits and her well-being,” then the contract is a mutual services agreement. Under such circumstances, a breach would occur if either party should fail to perform one of the services required of them.

These provisions aren’t to be taken literally. Instead, they merely lay out the expectations of the parties as to what the Dominant/Submissive relationship would entail. It is highly unlikely, then, that any portion of the contract, when viewed as a mutual services agreement, is actually enforceable as to nearly any of the specific terms. Rather, the contract would be more akin to a liability waiver (which is still a contract nonetheless). Nevertheless, the second interpretation would view the contract much more traditionally. If the Submissive’s consideration is the pleasure of her company, and Grey’s consideration is, the car he purchases for all of his Submissives, the contract is of an employment nature (especially in light of the specific contract term of three months). This certainly would make the contract far more enforceable than the first interpretation, but, again, provisions such as those that compel sexual performance would still be unenforceable. So what parts would be enforceable? The Submissive would be in breach if she didn’t show up at his apartment during the specified times and days (Friday evenings through to Sunday afternoons), and, depending on the judge, if she refused to participate in any of roleplaying specified in the contract.

The problem arises here because many of the provisions detailing the services required under the contract are unenforceable. For example, section 15.13 states:

Grey would be in breach if he never paid up.

The Submissive accepts the Dominant as her master, with the understanding that she is now the property of the Dominant, to be dealt with as the Dominant pleases during the Term generally but specifically during the Allotted Times and any additional agreed allotted times.

Should the Submissive breach, Grey would be able to collect the cost of the automobile, probably minus any work already performed by the Submissive (i.e., should she breach after one month of performance, Grey could collect 2/3 of the cost of the car). Should Grey breach, the Submissive could collect the cost of the car for however much of the term that she successfully completed.

This is obviously unenforceable because slavery is illegal. The same goes with the provisions compelling the Submissive to submit unwillingly to medical treatment, and those requiring the Submissive to “submit to any sexual activity demanded by the Dominant…without hesitation or argument.” Normally, it would seem that the prevalence of these provisions in the contract (they constitute at least half of the entire document) would cause a court to just declare the contract void in its entirety. However, the contract’s saving grace here is that it states “all that occurs under the terms of this contract will be consensual.” In any other kind of contract, this clause would seem superfluous; here, though, it serves to reinterpret the provisions compelling the Submissive to engage in any kind of behavior – sexual or otherwise.

Given the headache that any judge would get trying to make heads or tails of the mutual services interpretation, the second interpretation would likely be the prevailing one in court. This would mean that the Submissive would be akin to an escort, and that Grey habitually retained escorts prior to his meeting Ms. Steele. In other words, all of Grey’s previous submissives would likely be viewed in court as nothing more than his former employees. ♦ Purely Dicta would like to thank westlawinsider.com

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B usiness

CareerAdvice FromWalterWhite Marcus Hannah

B

reaking Bad’s antihero, Walter White, is a modern day success story. He went from being stuck in a dead-end job that payed him so little that he was forced to moonlight at a car wash, to earning 3 million dollars in a three month period. How did he do it? He sold drugs, lots and lots of drugs. Crystal Methamphetamine, to be exact. Ok, so maybe he’s not the best role model, but that hasn’t stopped us from watching in awe as the timid and weak high school chemistry teacher transformed into ‘Heisenberg’; the modern day Scarface. However, it wasn’t just intimidation and dirty tactics that saw Walt’s drug empire soar, there were also some solid business strategies on display. That’s right, behind the rough exterior Walter White is just a businessman looking to expand his business, albeit one who wears a hazmat suit to work and has become somewhat of an expert in knowing how to dispose of a human body. Nonetheless, there’s a lot to be learnt from the man (no pun intended). So here are 6 career tips I’ve learnt from watching Walter White in action:

1. Weigh up the pros and cons Just a few hours into the first season of Breaking Bad, Walt is already faced with an impossible decision; whether or not to murder the drug dealer tied up in his basement. To help himself out, Walter scribbles down a quick pros and cons list, regarding whether to kill him or not. Con: Murder is wrong. Pro: He’ll kill your entire family if you let him go. Sure, it’s not your everyday problem (if it is, you really need to sort your life out), however there’s bound to be plenty of hard-to-make decisions we all face at one time or another. Just like Walter White, creating a quick pros and cons list is a great way to weigh up your options. Hopefully your decision won’t be as morally questionable though. Something more along the lines of ‘Should I quit my job?’ is a question we are more likely to face. Write down all the pros on one side, the cons on the other, and compare them once you’re done. Having it written down that way should help you make a decision, and at the end of the day it should make you feel

26

better about what you’ve chosen (unless your decision is to choke a man to death with a bicycle lock. Let’s face it, you’re going to feel pretty shitty after that no matter what).

2. Don’t be afraid to get your hands dirty Whether you are an employer, an employee, or anything in between, there are going to be times when you need to get your hands dirty, possibly both literally and metaphorically. For Walter White, it’s safe to say his hands are probably a bit dirtier than most. Walt originally planned to stay in the background, doing the cooking himself and leaving all the nitty gritty to his partner, Jesse. However, anyone who has watched the show will know that things didn’t quite pan out like that. Whether it was disposing of a body in a vat of acid; going face-toface with crazed drug dealers; or executing child killers, time and time again Walt has demonstrated that he is able to do the jobs that no one else wanted to. He was willing to get his hands dirty, or soaked in blood, as it may be. The lesson that we can all take from this is that sometimes you need to do the dirty work yourself. Employers look for hard workers who can be trusted to get the essential but unglamorous and often uncomfortable jobs done; the ones that no one wants to do. It’s important to demonstrate that you’re not afraid to get your hands dirty, and that says a lot about your character and willingness to get the job done.

3. Never settle for less than the absolute best In the business world, it’s important to settle for nothing less than the very best. Whether it’s a product or a service on offer, customers and clients are constantly looking for the best their money can buy.


By having the best product on the market, it allows you to charge a premium price for your premium product. People will generally pay more for better product or services, and furthermore, satisfied customers become brand advocates for you, spreading the word to their friends and family. When it comes to Walter White, he only settles for the very best, which in his case is 99% pure crystal meth. By selling only the best product, he builds a reputation and gains a huge market advantage. And that unique blue colour; instant branding.

4. Choose your partners wisely Growing desperate to expand his reach and sell his premium product quicker, Walt realises that he needs to find a distributor; someone who can supply their product to a much larger audience than he and Jesse could ever hope to reach by themselves. The business plan is solid. Unfortunately for Walt, most of the distributors he decides to pair up with turn out to be sociopathic murderers. It definitely goes to show, you can’t be too careful when picking your future partners. Even the most lucrative business partnerships fall apart in time if they’re not built on a solid foundation of trust and mutual respect. While it’s definitely important to pick a partner with complementary skills, it’s also wise to pick someone who isn’t likely to throw you in the boot of their car and attempt to ship you off to a superlab in Mexico. You can’t do a good deal with a bad partner. Walter White found this out the hard way — ­ hopefully you won’t have to.

5. No half measures Near the end of the third season, Mike, Saul Goodman’s right hand man, offers some timely advice to Walter. That advice is simply ‘no more half measures’. Although ultimately Walt may take this advice a little too far, at its basis the advice is sound, and definitely worth heeding. This applies whether

you’re a drug mogul or just a young upstart looking to make a good impression at the workplace. The lesson to be had is basically this: if there’s a job to be done, do it properly. No employer is going to appreciate a half-assed effort, especially if it means that they’re going to have to do it over again. It’s lazy, and unattractive in a worker. I know that in the Facebook and Twitter age, where the average student’s attention span is rapidly deteriorating, that it’s hard to stay focused on the one task without wanting to wonder off or distract yourself by doing something else. But if you’ve promised to dedicate yourself to a task, just see the damn thing all the way through, and do it to the best of your ability. Mike would be proud.

6. Make yourself irreplaceable in the workplace With the economy the way it is, redundancy in the workplace is becoming a realistic and unfortunate reality for many people. There’s less work to go around, and jobs are being cut by the bucket load. However If it’s just your job that is at risk of being cut, you can still consider yourself luckier than Walter. After having a disagreement with his boss, Walt discovers that the only reason he hasn’t been killed yet is because he’s needed to cook the product. The problem: Walter has been inadvertently training a replacement who’s almost ready to step up and fill his shoes. Walter quickly realises that the only way to keep his job, and thus stay alive, is to make sure he’s the only one able to do the job. The same applies to all of us; make yourself irreplaceable in the workplace, and it will keep your head off the chopping block (hopefully in a more metaphorical sense than in Walter’s case). Scarcity leads to job security and usually higher income as well. If your talents aren’t a dime a dozen, and you can do what few others in the workplace can, then you can breathe easy. You’re probably safe. ♦

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E ntertain m ent

LawSchool’sGotTalent

Andy Chislett

M

any people say that law school is where the uncreative and untalented go to while away their miserable existences with their heads buried in dusty books. To those people I have one thing to say, jealousy is a curse. Having attended the 2012 edition of Law Schools Got Talent and witnessed act after act prove themselves to be exceptions to this rule, I can honestly say that the Melbourne University Law School boasts an unbelievably talented student body. Granted the unlimited bar tab may have in some way assisted in whipping the crowd into their eventual frenzy but the majority of credit must go to the volunteers who bravely faced their classmates and performed in front of them. The night began in a blaze of sexually charged danced moves put on by Melbourne’s hottest new boy band LAD5. Reports of swooning women and hysterical fainting are evidence that Australia’s answer to One Direction will soon too become a global phenomenon. However, given that LAD5 were not part of the competition the feverish demands for an encore were ignored and the 1st Act began in earnest with Nick Wolstenholme delighting the crowd with his stirring rendition of Nessun Dorma. Opera had never been sexier and both the crowd and judges were

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now on notice about the high quality of performances they would see on the night. The Hi – Fi bar has been home to some of the world’s greatest live acts with Fun, Boy & Bear, John Butler and Xavier Rudd an example of the quality of performers who have graced the same stage as our law school contestants within the past few months. It is fair to say that after LSGT 2012 the Hi – Fi will be equally as proud of groups such as ‘The Dissenters’ and ‘Uke Trio’ who rocked the crowd just as hard as any of their more acclaimed contemporaries. After more stunning performances of crowd favourites ‘Born to Die’ and ‘Jar of Love’ the crowd was beginning to feel overwhelmed by the quality of performances in front of them and an interval was necessary so everyone could regroup and gather themselves before the second act. With the crowd (and hosts) now beginning to feel the effects of LSS generosity the mood of the night changed somewhat as the packed house began to party hard. The timing was perfect to introduce resident heartthrob Alister Lloyd whose smooth vocal stylings were the perfect start to what would prove to be an equally impressive second act. The truly eclectic nature of the law school is reflected


in the choice of covers throughout the second act with Grease, The Doors, Kanye West and Robbie Williams all being performed to rapturous applause. Even using words such as ‘cover’ could mislead readers to the quality of the performances on the night, if any of the original artists were blessed enough to be in the room they would have agreed that the renditions were themselves works of art deserved of critical acclaim in their own right. The judges were in an unenviable position as they retired to consider their verdict. The crowd was not left to wait in silence as the professionals took over and took the quality to an even higher level, if that was even possible. When the judges returned it was time for the results. The moment everyone had been waiting for had finally arrived and the results were…. not important. What really matters is that everyone had fun and it would be unfair to try and separate the performers when all of such a high quality. The judges, Katy Barnett, Jason Bosland and Ant Freeman do need to be thanked as they took time out of their busy schedules to adjudicate the night. Thanks also to Daniel Osvath for hosting the night and ensuring that the crowd was kept laughing in between. One thing we can all agree on is that Melbourne Law School truly has talent. A special thanks to the following superstars for volunteering their talent; LAD5, Leopold Bailey, Peter Brookes, Mason Clarke-Jones, Jock Martin, Jason Abramowski, Nick Wolstenholme, Kat Yang, Jenny Zhao, Christian Camilleri, Wendy Liao, Oliver Matas, Winnie Mok, Alister Lloyd, Madeleine Miller, Cameron Bloye, Benjamin Muller, John Harris, Renata Blythe, Tessa Sidnam, Kate Lishman, Henry Hedinger, Charles Hopkins, Tim Hamilton, Ben Sturrock, Harry Hookey, Pat Santamaria and the Raffaellas. The night began with a tribute to Daniel Wright. Nothing more needs to be said about the touching performance put on by his friends and classmates other than that all who attended were moved by the emotion encapsulated by the fitting song choice. As someone who never had the pleasure of meeting Daniel, I would like to thank them for their tribute as their performance’s intimate nature allowed me to see the type of person Daniel must have been to inspire such feelings in his friends and classmates. ♦

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E ntertain m ent

Bernie: AReview Mika Tsoi

A

n assistant funeral director befriends then kills an elderly widow. Hilarity ensues, and it does.

Marjorie questions Bernie’s manhood when he can’t and won’t shoot an armadillo.

Some jokes you hear and they’re funny but you feel bad about laughing. When I left the cinema after seeing Bernie, I didn’t know how I felt; I wanted to enjoy having laughed, but didn’t feel right about it. Normally, the limit is being in two minds; I was in three. Apart from the humour and darkness, the law parts were interesting.

Jack Black has never struck me as an actor. His performance skills seem to consist of adjusting the volume knob, higher or lower just as he did in High Fidelity: his normal self, amplified. In this performance, he transforms himself. ‘Acting’ might ordinarily manifest itself in speech patterns or facial expressions, but Black’s skills show themselves in the delicate little walk Bernie takes as he turns his back to the camera at the very end: a gentle man who had a moment of madness. That is Bernie’s defense: emotional, not legal.

To start at the beginning: the source of all good crime stories are newspaper headlines: a million monkeys who don’t type but make bad choices. They end up on COPS. If the story is strong enough, salacious enough, gruesome enough, they will also make it to the ‘real’ crime shows where actors reconstruct the crimes and they show reaction shots from those involved. Our man Bernie committed a crime of renown - you see, it’s based on a true story. The scene is a small town, Carthage, east Texas. The ‘east’ could be capitalised as is explained at the beginning; it’s really like five different states, not including north Texas. Much of the humour and pathos comes from the setting. The flavour comes from the talking head interviews, given by the townspeople. When Bernie is introduced, he’s a super nice guy. In fact, he is an all-Texas assistant funeral director: omni-competent. Bernie runs a demonstration for student morticians, showing them the tricks of the trade; he’s surprisingly good at the nails and the make up. He sings, in funerals and in church; he’s generous so the people love him. They say things I could not make up: ‘Bernie? Kill her? That dog don’t hunt.’ It helps that they are played by real residents of Carthage, Texas. This is not to say the leads aren’t terrific; they are. One Bernie line, showing his coffin salesmanship: ‘I’m not sure about cremation. I don’t know about the idea of someone spending eternity in something the size of a motel ice bucket.’ Bernie conducts Marjorie’s husband’s funeral then wants to make sure she’s coping. Really? Really? Bernie helps us out by asking, ‘Was Bernie gay?’ and ‘Was it romantic?’ After that we can focus on Bernie and Marjorie’s relationship and the motive for the crime. They become close and travel. She employs him as her assistant and scene after scene provide the reasons why we do not hate Bernie when he shoots Marjorie; my favorite is when Chekov’s gun is planted:

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The townspeople cast Bernie’s actions as, ‘she had it coming.’ While not a defense in law, an opinion on Majorie, played by Shirley MacLaine cannot help but be coloured by the strangest part of the whole deal: we get everything from Bernie’s point of view, or yet more removed. We can never know what Majorie was actually like. Would the nicest man you’ve ever met lie to you? Why would he? Why wouldn’t he? Marjorie, by MacLaine, through the eyes of Bernie, is Lady Macbeth without the ambition. She’s just as complex, though lacking in guilt. She’s the best kind of monster the one not weakened with a sob story. MacLaine is as domineering as Black is stubbornly kind. Their relationship cannot help but drive the movie. When MacLaine is gone, Matthew McConaughey enters as the ambitious District Attorney. A DA desperate to make noise as the‘law’, he takes the case of the man everyone loves and is clearly guilty. I have never thought of McConaughey as capable of nuanced emotions. He’s the guy that can’t help but afflict girls with cases of infatuation for him or he’s playing the crusading lawyer. This time, his crusade is presented as a modern view of an ancient crusade - not a popular one. As a man running for re-election, he wants to make some noise. Unfortunately, people keep telling him they won’t convict Bernie. What are you to do with a town subverting the jury system? Here is the thorny legal issue. Bernie presents McConaughey pushing his boulder up the wrong hill, a problem he solves with aplomb. In the end, it all plays out as a Greek tragedy: the inevitable downfall of this man and all the pieces matter. It’s one of the funniest bizarre tragedies I’ve seen. To me, it is worth your time and effort. ♦


APoem Pat Santamaria

I

forgot (to write the poem you asked me to write for Purely Dicta).

Can I do something still or in the next few days? ‌No Pat, we have to go to print. Thanks anyway. ♌

Photo: Ben Sturrock

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Purely Dicta, 2012 Issue 2  

Bi-annual law school publication produced by the Melbourne University Law Students' Society.

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