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THE OBITER ISSUE 20 TRIMESTER 2 2018

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INSIDE THIS ISSUE PRESIDENT’S ADDRESS

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USALSA NEWS Social Events 04 Career Events 05 Competitions 06 Meet Your First Year Rep 08 AURORA INTERNSHIP PROGRAM

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CORPORATE CRIMINAL LIABILITY

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LAW, ART AND LITERATURE

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NEW SOUTH WALES V CANELLIS

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INDIGENOUS CRIME 22 LAW AND LATTES

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REFERENCES 26

CHECK OUT OUR SOCIAL MEDIA AND WEBSITES TO KEEP UP TO DATE

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Layout/Design: Eden Panozzo Cover: Janita Sumeiko Opinions are of those of the author and not necessarily those of the USALSA, The Obiter, or the University of South Australia Law School


WORDS FROM YOUR PRESIDENT Hi all, I hope everyone is surviving trimester 2. Motivation typically dwindles during the middle of the year. All of your friends are on holidays, you only got two weeks break after studying for an intense 12-week period, and the cold weather makes it so hard to escape the warm confines of your bed for that early morning lecture. Make sure you look after yourself, both physically and mentally, to prevent burnout (and so you can attend law ball). For all the first year students reading this, trimester 1 can be a tough experience as you are tested on your legal abilities for the first time. More often than not you receive a grade that you are disappointed with because you are so used to being a high achiever. Just remember that your grades do not define you and they do not define how you will perform in your future career; everyone must start somewhere. Take a disappointing grade and morph it into a learning opportunity. Read your feedback, take it on board and apply it to your next assignment. Go and speak with your lecturer or tutor to gain an understanding of what you need to do to improve yourself. Remind yourself that you are completing a notoriously difficult degree and be proud of the fact that you survived the initial stages of it! On a lighter note, we have had some great events thus far: Juristic Park pub crawl and the careers skill building night. We also had nine delegates attend the ALSA National Conference; two general delegates and seven competitors. For those of you who do not know what ALSA is, ALSA is the Australian Law Students’ Association. Each year they hold a conference in a different state where delegates from every law school in the country attend ‘council’ to share their successes, failures and tips on how their law student association/society runs. There are also five competitions that law students from every university compete in (witness examination, client interview, negotiation, international & humanitarian law moot, championship moot). Our team did us proud with our client interview team placing 4th overall and our witness examination competitor taking out the title of witness examination Australian champion!! This was a fantastic achievement for USALSA. Prior to this year, no team has ever broken quarter finals, let alone taking out the entire competition. Congratulations everyone! Alex (USALSA treasurer) and I attended the council for four days to share our experiences and learn from other student associations, so look out for some big changes, new events and new opportunities! I hope you all have a fantastic trimester! Stay safe and see you all at law ball! Jess

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USALSA NEWS SOCIAL EVENTS This year started off with a bang with USALSA’s Juristic Park Pub Crawl hitting Adelaide’s streets in April. With over 120 students involved, and 5 venues participating, it was a night to remember. After some last minute hiccups, the night started at the London Tavern with some super cheap drink specials. The crawlers then made their way to the Elephant British Pub for a few cheeky fireball shots and then the Austral to wash it all down with a few jugs of cider. Kicking the night up a notch, students hit the infamous Hindley Street for great drink specials at Black Bull and Super California. The USALSA Activities Team is now hard at work finalising all the details for our Winter Wonderland Law Ball later this month! Keep an eye out on our social media for updates on our social events for Trimester 3! 4 THE OBITER


USALSA NEWS CAREER EVENTS USALSA’s Careers Team have been incredibly busy this year organising a fantastic range of careeroriented events for students. SOUTH AUSTRALIAN TRIVARSITY CAREERS FAIR The South Australian Trivarsity Careers Fair was a joint initiative of the three universities of South Australia to provide a ‘one stop shop’ for students. This event allowed students to obtain guidance regarding career opportunities, and volunteer positions that are available during their studies or after graduating. USALSA AND ADELAIDE GDLP SKILL BUILDING NIGHT This workshop was made available to provide students with tips on how to prepare themselves for the legal profession. A member of UniSA Career Services provided a short seminar informing students on the content they should include in a resume and cover letter. The evening also involved a panel of speakers, who provided students with insights into the legal profession. In addition, the Law Society also gave an overview of their GDLP program to enable students to really consider their career prospects. PRACTICAL LEGAL TRAINING (PLT) FAIR The Practical Legal Training fair allowed students to engage with GDLP advisors and discuss programs that are offered so students can consider and determine which program suits their interests and needs best. ALTERNATIVE CAREERS SEMINAR This event is directed at students to promote the alternative employment opportunities that are available to them. It exposes students to members of the community who have graduated with a law degree but have been employed in areas other than legal practice. This event has been successful with students as it outlines that a law degree can provide diverse opportunities, and students are then able to consider all the potential career paths available to them. If you missed out on any of these events there is no need to fear - there’s still one more to come this year: SPEED DATING EVENT This event enables students to interact and network with solicitors who are employed in various areas of law. Students are given the opportunity to ask questions and obtain career advice from members of the legal profession. This event has been very successful in the past as students are able to interact with practising lawyers in an informal and relaxed environment.

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USALSA NEWS COMPETITIONS In Trimester 1 the USALSA Open Competitions were held. These competitions are run for all students of any experience and are run by the student Competitions Team from USALSA. We ran four competitions, including the Lipman Karas Open Moot, Negotiation, Client Interview and Witness Examination. We thank Lipman Karas for their continuing sponsorship of the Open Moot. Each competition has 1 or 2 trainings before one preliminary round and one grand final. There is at least a week or more before each preliminary round and grand final to prepare the question. Mooting, Negotiation and Client are competed in teams and Witness Examination is individual. This years competitions saw many students compete and the standard was very high. All judges involved commented on how well each and every one of the competitors performed.

These competitions can benefit you in many ways. They can assist your career prospects and develop many vital skills. The skills can include increased confidence, public speaking skills, oral advocacy skills, how to interview clients and much more.

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From my experience in competing and running these competitions, your skills will advance and assist in other subjects and professionally. While my skills aren’t perfect I have developed being confident, being able to think of my feet and how to advocate for a client.

I would like to thank all of the judges who took time out of their busy lives to judge the competitions and provide essential feedback to the students. Without their input, the competitions would not be the same. I would also like to thank those that helped in running the competitions including those who acted as witnesses, clients, time keepers and so on. The grand final saw the production of stellar performances with Liam Waddill and Ryan Feuerherdt taking out the Moot and Claire Zollo and Emma Martin winning Negotiation. Daniella Hoy and Murtaza Dostdar were our Client Interview champs and Georgie Grosset won Witness Examination. These winners went on to represent USALSA and UniSA at the Australian Law Students’ Association


Conference. This Conference is held annually and this year was held in Adelaide. It brings together the top law students from around Australia and New Zealand to compete in 6 different competitions. USALSA entered our 7 winners in 4 competitions, the Championship Moot, Negotiation, Client Interview and Witness Examination. This conference was from the 2nd July to 7th July.

been in finals, let alone won a whole competition. I am excited to see what we can do at future ALSA Conferences.

Prior to this week, I spent approximately four weeks with these 7 competitors, training them and preparing them for their competitions, based on my experience in the past two years at ALSA. Thankyou to the other USALSA members and UniSA lecturers who also assisted our training sessions.

These training sessions definitely helped as UniSA did very well this year. Our Negotiation team, Emma Martin and Claire Zollo and our Moot team, Liam Waddill and Ryan Feuerherdt both did a fantastic job. A special mention goes to our Client Interview, Daniella Hoy and Murtaza Dostdar team who placed 4th out of 21 teams, this is an amazing achievement. Our biggest achievement was Georgie Grosset, achieving 1st place in the Witness Examination Competition. This was such a wonderful result and I couldn’t be prouder of all 7 of them. It has been a long time since USALSA and UniSA have

I would recommend each and every one of you reading this to get involved in these competitions. If you have ever thought that you do not have enough time or do not have the skills, in future consider there are usually two trainings per competition and some competitions do not require much time involvement. Most students who competed this year had not done the competitions before. I hope to see all of you involved with competitions in the future. Many of you would be considering becoming a solicitor which involves interviewing clients There will be future opportunities to compete so keep an eye out on the USALSA Facebook page and your emails. For First Year students, look out for the Novice Moot held in Trimester 3 only for first year students. Keep an eye out for the release of the Competitions Guide detailing anything and everything you need to know about USALSA Competitions. If you would like more information about competitions, please contact Hannah at competitions@usalsa.org.

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USALSA NEWS MEET YOUR FIRST YEAR REP My name is Shania Morgan, and I am the first year representative for 2018 first year cohort. The degree which I am undertaking whilst at UniSA is double degree in the Bachelor for Laws (Honours) and Psychological Science. My primary role as the first year representative is to be an advocate for the first year cohort, by addressing any concerns or ideas that students may have in order to enhance their law school experience. While in this role I aim to encourage students to engage students attend any activities that USALSA offers as it will ultimately benefit them in getting through their degree and once they get out into the workplace. I would like to provide to the first year cohort the required educational and vocational support to ensure that their law school experience is advantageous for them. I also want first years to get the most out of their degree, so any concerns that arise from the courses can be filtered back to me so that it can be amended in the future to ensure that everyone’s law degree is a rewarding and interesting experience. Lastly, I aim to build a close-knit cohort where we can rely on each other, share our experiences and create lasting friendships. Outside of Uni and USALSA I have a variety of hobbies to occupy myself with. To keep active I enjoy swimming, and swim competitively at state and national level in my favourite stroke, breaststroke. Some highlights that I have experienced while swimming have been competing in the State Teams Event where I travelled to Canberra to verse other swimmers from other states, and the Olympic Trials which were held in South Australia in 2016. My other favourite hobby is reading, I especially love reading period pieces by my favourite author Jane Austen. My favourite novel by her is Persuasion, however I do find all her pieces equally intriguing to read. Of course, I also love spending time with my friends, and we always find new activities to do. In relation to movies my favourite is Frozen, however I enjoy watching Marvel Cinematic Universe franchise movies too and will often have a Marvel Movie Marathon with my friends. I feel I am approachable person, so feel free to come to me with any concerns, issues, questions or just to have a chat. I am also very hardworking and promise to make sure that the first years get the best law school experience they possibly can. So feel free to come to me with anything, as I am not scary, and I am open to any feedback that can be provided for the future.

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AURORA INTERNSHIP PRO A reflection on his experience working in a rural community by Frank Connolly

I was approaching the end of my university degree and felt the need to get out of my comfort zone and do something a bit different. Consequently, I decided I would submit an application to complete a six-week legal internship through the Aurora Internship Program. Having grown up in a small regional town, I had been aware of Indigenous issues from a young age. With a view to returning to my rural roots, I figured the internship would improve my cultural awareness and sensitivity and provide me with a useful skill-set which I could potentially utilise later in my professional career. Not long after my application was approved, I found out that my internship would be with the Civil team at the North Australian Aboriginal Justice Agency (NAAJA) in Katherine, Northern Territory. A quick google search indicted that NAAJA had provided legal services for more than 40 years in the Top End and was highly respected for providing culturally appropriate legal services. It was fair to say that I was looking forward to experiencing some of the work that they do. Arriving in Katherine on New Year’s Eve, the first thing that struck me was the brutal heat and humidity. Consequently, my first week working at NAAJA entailed a combination of trying to stay cool whilst taking on board a lot of new information. However, I soon started to acclimatize once the heavy rains began to hit in the afternoons with increased regularity. My supervisor had collected an array of different tasks from the other lawyers for me to commence working on upon my arrival. I found myself conducting research, drafting different types of letters and legal documents, and liaising with clients. Much of NAAJA’s work can be very demanding as many clients’ problems are often linked with other social and economic issues. I worked on cases involving child protection matters, consumer problems, coronial inquests, police complaints and government service problems.

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OGRAM In addition to my work in the office, I was fortunate to attend two week-long bush trips to several remote communities to provide advice or assistance to any community members. In addition to witnessing some amazing scenery, I was able to meet the people living in these remote areas and understand the difficulties that they faced on a daily basis. It was clear that they have been let down badly by numerous government policies and services, and that significant improvements are long overdue in areas such as housing, health and education. Another gratifying feature of the internship was that I was working on and completing ‘actual’ legal work rather than simply collecting coffees or spending hours scanning documents (just some of the stories I have heard from friends!). Consequently, there was never a dull moment as I was constantly learning new information and developing my legal skills. The only quiet moment occurred on my final half-day of work when I was able to attend the courthouse and observe some of the proceedings. I was fortunate to meet a fantastic group of people working at NAAJA who were very open with their knowledge to me and encouraging of my development. Despite how hard they worked, they always had time to answer my questions or organise ‘catch-ups’ to ensure I was on the right track. I was provided with a lot of responsibility which motivated me to ensure I returned a good quality of work. Overall, I found the internship highly rewarding. I thoroughly enjoyed my time at NAAJA and will make sure to stay updated on its future activities. I would advise anyone who is interested about applying for an Aurora Internship to access the plethora of information available on the Aurora website - applications for the summer 2018/19 round will be open from 6 through 31 August.

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CORPORATE CRIMINAL LIA Since the beginning of corporations, placing criminal liability on a corporation has been a task fraught with questions and issues for the legal world. Recent tragedies at the hands of corporations have thrust a spotlight on criminal liability and where corporate bodies fit into this scope of law. Such tragedies include the Grenfell Tower fire and the Queensland Dreamworld theme park deaths. However, dealing with criminal liability in a corporate sense is rather difficult when one remembers that the criminal law was designed to deter and punish individuals. As one Lord Chancellor of England put it so simply; ‘did you ever expect a corporation to have a conscience, when it has no soul to be damned, and no body to be kicked?’ On the surface, it is difficult to comprehend how a corporation could be held criminally liable, when a corporation is not a tangible person, but a group of people together acting as one. For example, if a corporation were to commit a crime attracting a jail sentence, how does a judge navigate the task of sentencing? It is impossible to imprison an entire body corporate, which begs the question; how do you hold a corporation liable when it is impossible to impose the specific punishments of a crime? Over the years many attempts have been made to provide solutions to the numerous issues surrounding corporate criminal liability. Alongside continually-developing common law, legislation has been introduced to a number of countries, and one state within Australia. Despite law-makers’ best efforts however, there are still a range of legal issues when it comes to assigning

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criminal liability on a corporation, some of which are discussed below. It is important to note that despite these issues, the law has developed extensively and there are recognisable benefits to corporate criminal liability legislation. Australia’s current approach to corporate criminal liability is not uniform and at times somewhat unclear. Most states have different approaches and some, such as South Australia, do not have legislation and rely solely on common law and the Criminal Code Act 1995 (Cth). The Criminal Code Act 1995 (Cth) provides some guidelines in this murky area of law. The Code treats corporations as individuals, and under sections 12.2 and 12.3, a corporation will be found liable if the crime is committed by an employee, agent or officer working within the scope of their employment, and that the body corporate ‘expressly, tacitly or impliedly authorised or permitted the commission of the offence’. The ACT has introduced legislation to deal with corporate criminal liability. This legislation provides an Australian viewpoint as to some of the advantages of legislating corporate criminal liability, but also the possible legal implications that can arise. SOUTH AUSTRALIAN APPROACH As mentioned above, South Australia does not have specific legislation pertaining to corporate criminal liability, and so relies upon common law, the Criminal Code Act 1995 (Cth), and the Criminal Law Consolidation Act 1935 (SA). Section 291 of the Criminal Law Consolidation Act 1935 (SA) allows for a corporation to have a representative in court, and throughout


ABILITY

An analysis of Australia’s current approach by Natalia Reveruzzi

the act there are specific punishments for corporations. However, despite being considered by Parliament, there is no South Australian legislation relating to corporate criminal liability in regard to manslaughter as yet. In 2016 the South Australian Supreme Court made a historic decision and was the first South Australian court to sentence a trucking company owner over the death of an employee. R v Colbert involved a trucking company that knowingly failed to repair faulty brakes resulting in the death of one of their drivers. The corporation was alleged to be responsible and Mr Colbert, the sole director and shareholder of the company, was charged with manslaughter and endangering life and found guilty. The outcome of this particular case could perhaps be taken as an indication that the introduction of legislation is unnecessary to ensure the course of justice in the state courts. However, R v Colbert is the only one of its kind in South Australia and so it cannot be relied upon to make a substantive decision on whether legislation governing corporate criminal liability would be of benefit.

CRIMINAL LIABILITY IS ESSENTIAL Homicide is commonly considered one of the most serious crimes and holding corporations liable for the death of individuals is fundamental for the coherence of criminal law. Specific legislation for corporate manslaughter could effectively produce justice, as well as victim and community satisfaction in respect to negligently caused deaths. Australia continues to have significantly high numbers of work related deaths each year. To allow companies to avoid criminal accountability for their business failures, which causes death, trivialises the value of life. It is crucial that criminal consequences, rather than merely civil, administrative or quasi-criminal penalties are employed. Dependence on quasicriminal offences under occupational health and safety/worker’s compensation legislation is remedial rather than punitive in nature. These legislations are concerned with purchasable commodities, compensation and rehabilitation for the victims. Rather than penalties or deterrence for incompetent corporations and their practices. While this legislation can discourage unsafe practices, which lead to deaths, the importance of criminal law remains apparent. By implementing specific corporate manslaughter legislation, punishment, deterrence and justice can be employed. CURRENT APPROACH Australia’s current approach in dealing with corporate negligence has failed to establish a comprehensive basis for corporate liability for manslaughter. Which individuals within corporations are capable of contributing to corporate liability is narrowly defined.

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Corporations are protected and the courts’ refusal to allow aggregation additionally shields organisations from the penalties of their shared failure. There are currently major loopholes within corporate liability, it is believed some are so significant that corporations could pro-actively arrange their internal affairs to make successful prosecution for manslaughter virtually impossible. Presently, it seems the courts have unintentionally created a model for organisations to avoid liability, rather than developing an effective means of establishing liability. In R v Cittadini prosecutors argued manslaughter by omission convictions. Cittadini was sentenced to a term of imprisonment after a yacht he built overturned when its keel snapped, drowning four of the six crew members on board. It was alleged that Cittadini’s company did not execute high-level quality assurance checks, therefore he was found criminally negligent. Despite Cittadini being unaware of the keel being unfit for use, the judge ruled he should have known through appropriate checks. He was sentenced to three years in jail, however the NSW Court of criminal Appeal quashed the convictions and ruled the lower courts verdict as a miscarriage of justice. Corporate manslaughter is therefore difficult to establish and continues to be an area of uncertainty.

This issue could potentially be improved by implementing aggregating fault and expanding vicarious responsibility, yet still maintaining the precedents of criminal law. Evidently, as the common law fails to find an adequate means of establishing corporations guilty of manslaughter, there is strong argument that specific legislation to deal with these cases needs to be implemented. DETERRENCE One of the main issues in imposing criminal liability upon corporations is the challenge of deterrence. It is generally agreed that for a punishment to be a deterrent it must largely exceed the potential gain that would come from committing the crime. An issue arises because the maximum fine that can be a deterrent against a corporate offender is dependent on its wealth. Evidently a $7 million fine is no more of a deterrent than a $700,000 fine if both are beyond a corporation’s ability to pay. This is not an issue in cases of individual offenders as they are still deterred by threat of incarceration. The ability to deter a corporation is confounded by the inability to set an adequate punishment which is not beyond the corporation’s ability to pay. One of the most notable early cases of a prosecution alleging corporate manslaughter in Australia was R v Denbo Pty Ltd. Denbo Pty Ltd was prosecuted after one of their employees was killed when his truck’s brakes failed. The corporation pleaded guilty and was fined $80,000. However, at the time of its convention, Denbo Pty Ltd was in liquidation. The fine was not paid, even after the directors opened a successor company, recommencing the same operations. NEGLIGENCE AND INTENT Establishing negligence and intent against corporations is problematic. To be held criminally liable intent is required, this provision protects

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individuals with mental disability’s if they commit an otherwise criminal act but do not understand or intend the consequences of the action. A conjunction of actus reus (guilty act) and mens rea (guilty mind) must be established for those without a mental disability to be convicted of a crime. It is evidently difficult to establish a guilty mind for large companies that could include thousands of employees. Rather, intent would have to be sufficiently established on the part of a CEO or senior manager to demonstrate intent across an organisation. However, guilty mind is difficult to identify for these individuals because an adverse event is often the result of many different decisions over a period of time. In these instances, it is not always necessary to establish intent to achieve conviction, as an individual’s behaviour can still be ruled criminal conduct in cases of negligence. These sorts of cases are often ruled upon ‘reasonable person and reasonable conduct’. Negligence could be proven in respect to typical operating processes and organisational norms. However, whether those norms are inadequate to protect employee and public safety at a corporate level is questionable. Negligence can be caused by multiple individuals’ lesser failures within a corporation. Therefore, legislation based on so many structures within corporations, in conjunction with case law is extremely complex. While some legal systems, like those in the ACT have attempted to amend this aspect of law due to its injustice, the area remains piecemeal. RECOMMENDATION As a monetary punishment for corporations is often found as an unsuccessful deterrent in

respect to corporate manslaughter, an alternative technique is recommended. A court could order an adverse publicity sanction which is designed to have a punitive impact upon the corporation. In the Crimes Act 1900 (ACT), in relation to industrial manslaughter, a corporation found guilty may be ordered to take any action ruled by the court to publicise the offence. Therefore, the organisation may need to publish their wrongdoing on television or in an annual report. They could also be ordered to advertise all the companies they own, as the public may be unaware the guilty corporation is connected to other organisations. This may inflict monetary loss on the company due to reducing sales and share value. It would also impact the prestige of the company and its agents, its reputation would be tarnished. CONCLUSION Without strong evidence that charging corporate entities in the same way as individuals, and locating criminal liability in corporations, will decrease deaths and injuries within the workplace, changes to current legislation in Australia (except for the ACT) is unlikely, as every State has rejected the idea. States have deemed specific corporate manslaughter legislation as an ineffective form of addressing corporate killing. However, implementing penalties on corporations who play a part in an individual’s death is necessary. Corporations must not believe there are no consequences for their actions. Without required legislation, corporations facing the courts in situations alike to R v Denbo Pty Ltd will suffer no real penalties. Therefore, these results would continue to be unjust for the victims and all Australian society.

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LAW, ART AND LITERATURE In January students from the UniSA Law and Business School travelled to Europe for the Law, Art and Literature Study Tour. This course primarily focused on the intersection of art and literature and its impact on the law over time.

A critique of the law, its language, its practitioners and procedures through Bleak House and The Trial by Courtney Dolphin

Bleak House and The Trial are both harsh critiques of the judicial system and the figures within the legal profession. Both Charles Dickens and Franz Kafka illustrate how combinations of delay and confusion within the legal system create an institution that no one understands. Through comparing both texts, the way in which Dickens and Kafka convey their particular distaste toward the legal profession will be explored. I THE FOG

Throughout the tour we learnt about King Henry VIII’s impact on the law and noted the depiction of law around Shoreditc – with its ever-changing street art, just like the law itself – and examined Charles Dicken’s contempt of the legal profession. The tour furthered my knowledge on classic literature, and I gained a different perspective through comparing it to Renaissance Art. It was fascinating to learn how history has impacted the development of the legal system and how authors have criticised it in their writing.

At the very outset of Bleak House, Dickens is attempting to convey what appears to be an ineffective legal system through the use of fog. The courts are depicted as being repetitive and misguided, and hence the fog demonstrates the uncertainty involved within the system. Furthermore, Dickens is implying that the judicial system is submerged in outdated traditions. The system has also confused the practitioners because no lawyer can discuss the Jarndyce and Jarndyce case without coming to a disagreement. Additionally, the Lord High Chancellor is not engaged in proceedings, demonstrating that the formalities of the system are tedious and archaic. This further supports that the justice system is ineffective, because even the superior figures of the court fail to understand the cases. The houses in the streets of London are also losing their colour and are decaying. Through this, Dickens is attempting to demonstrate that the court system is an institution of mass destruction that destroys everything within in its reach. This is also evident later in the novel when Dickens again states that the system ‘taints everybody’. In addition, the legal system is also compared to a ‘rotten reed’, indicating that Jarndyce and Jarndyce poisons everything. Similarly, the legal system in The Trial is also poisoned due to the bribes accepted by the officers. Hence, both authors illustrate that the system has been corrupted

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by legal practitioners. This has also resulted in the lack of transparency within the legal system, because lawyers do not reveal anything about court proceedings. Furthermore, the fog can be seen as ‘a symbol of institutional oppression, human confusion and misery’, because the court has the ability to destroy the trust that society places in the system that is meant to deliver justice. The use of the fog also portrays the legal system as an illness that spreads throughout the city. Both authors criticise that the system has the ability to exhaust people, and as a result, the characters are suffocated as a result. This is evident within The Trial as ‘the alleys [choke] with dirt’. This further supports the court system seeks to destroy all those who enter, and the only way to escape is to concede to its power. This is evident toward the end of The Trial as Josef has been misguided and fooled by an endless system. Similarly, in Bleak House, Richard has also become consumed by Jarndyce and Jarndyce, and meets his death as a result.

Within each text, lawyers constantly delay proceedings, and are reluctant in updating clients on the progress of their case. Through this, lawyers are depicted as not acting in their clients best interests. The practitioners also have the ability to confuse aspects of the system so that no one understands it. This is evident in Bleak House, because ‘the lawyers have twisted [the case and] the original merits of it have long disappeared’. This lack of transparency in Bleak House is depicted by the fog, and similarly in The Trial, cases are sworn to secrecy. Hence, both novels demonstrate that the system is flawed because the practitioners are not making full disclosure to their clients.

THE PRACTITIONERS AND THE COURT SYSTEM

In addition, Dickens displays his disgust toward the profession when he states that ‘lawyers lie like maggots in nuts’. This reference to the profession details that lawyers are infestations that feast on the rotten flesh of decaying cases. This is because lawyers are depicted in both texts as arrogant, and mechanical, meaning that practitioners perform their duty by default because they have no ‘touch of compunction, remorse or pity’.

Both authors bring the legal system into disrepute by degrading legal practitioners.

Both texts also detail how the system deceives people. At the beginning of The Trial, Josef has

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faith in the system and believes that justice will prevail. However, this does not occur, and Josef is never notified about the progress of his case. In addition, a lawyer within Bleak House considers that Jarndyce and Jarndyce is ‘one of the greatest Chancery suits ever known’. Furthermore, Dickens is also conveying to the reader that the system is selfish and only benefits lawyers, because Jarndyce and Jarndyce is a curse that haunts the generations of the Jarndyce family. Overall, both authors consider that the system fails because there is a lack of transparency, and this reiterates that the system does not deliver justice. The notion of the legal system maintaining a tight grasp on all those who enter is evident in both texts. Dickens demonstrates this through the character Mr Krook, as he will not depart with any of the items in his shop. Similar to how Mr Krook is unable to release any of his items, the court system is portrayed as not being able to release any of its cases. Additionally, Kafka also details that the court has the ability to exert an overwhelming amount of influence, causing a person to become trapped. And a person may always be trapped because the court rarely ever releases one of its victims. In addition, Dickens details that people are brought to

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the court because the law forces them. This is especially true in the case of Josef K, because he is forced to go to the court, but for an unknown reason. Overall, the central theme of each text is that the legal system fails because no case has a proper cause. Furthermore, Dickens and Kafka criticise the system due to this, because the legal profession taunts society. However, both authors make reference to the fact that it is not the practitioners who are at fault, it is the system. Within The Trial, the legal profession is put to shame because the officers accept bribes and hence bring the system into disrepute. Furthermore, the authors are implying that the system would be more respectable if it did not involve lawyers, because in their opinion, it is the lawyers that have corrupted the system. Both texts also detail that due to the flaws of the system, individuals who access it are denied justice. Kafka demonstrates the injustice within the legal system through his character Titorelli, who paints a portrait of a judge that resembles Lady Justice. But, this portrait has ‘wings

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on [her] ankles’, which is a direct reference to the faults of the system because if Lady Justice is moving, the scales will not be balanced. Hence, according to Dickens and Kafka, it is a misnomer that everyone is accorded justice within the legal system. This is even more apparent when Kafka describes the ‘door keeper who guards the law’. Since the man is constantly refused entry, this represents that no one is able to access the law. Similarly, Dickens also implies that justice is denied to the public because cases are never resolved and the parties never receive judgment. Together, these aspects of the texts detail that society has a misguided faith in the legal system, and both Dickens and Kafka are attempting to demonstrate that this belief is ill-founded. Delay is another theme that is explored in both texts. Dickens illustrates this through the case of Jarndyce and Jarndyce, and how it ‘drones on’ due to being trapped in the system for decades. Similarly, Kafka explicitly states that ‘cases [like Josef K’s also] drag on’. In addition, delay is also represented by The Merchant in The Trial, because he is the

oldest client of the advocate. Hence, another criticism of the profession is that cases remain within the system for unnecessary amounts of time. This further conveys to the reader that the court system does not serve the interests of the public, and is another way that Dickens and Kafka detail that the system only exists to benefit lawyers.

III THE BIRDS Another symbol used by Dickens is the birds that belong to Miss Flite. These birds represent how the case of Jarndyce and Jarndyce has been locked up within the court system for


decades. According to Emma Brodey, Dickens uses birds as a way of ‘[criticising] society’s lack of care for those who are lonely or caged’. This represents that even though the characters within the novels are captured by the system, society does very little to release them. Furthermore, these birds are said to ‘die in prison [because] their lives are so short in comparison to Chancery proceedings’. Additionally, the life of Richard Carstone is also very short, representing that he has also been consumed by the case and destroyed by the system. Similarly, the girls that beg to enter Titorelli’s studio are also trapped. These girls are similar to the birds in Bleak House because they will not leave until Titorelli paints them. The fact that these girls are seeking to enter also connects back to the door keeper, because they are always denied entry to Titorelli’s studio. Furthermore, this demonstrates to the reader that access is rarely granted to the law, and if a person does gain access, they are trapped indefinitely. Law offices are also located outside of Titorelli’s studio, and this is because ‘everything

belongs to the court’. In addition, Titorelli has inherited his trade of being a painter from his father. This further implies that, similar to the birds in Bleak House, he will always belong to the court. The fact that Titorelli inherited his trade is also similar to how the case of Jarndyce and Jarndyce is passed down through each generation. Brodey also makes reference to Mr Boythorne’s canary and considers that it is ‘a symbol [of] voluntary captivity’. Comparing this to Miss Flite, she has also voluntarily caged herself within the Court of Chancery. And she will only be ‘set free’ on the day her judgment is handed down. Similar to how Mr Krook never relinquishes the goods in his shop, it also pains Miss Flite to release her birds once Jarndyce and Jarndyce has finally been resolved.

[the] epitome of the corrosive, crippling effects of the case of Jarndyce and Jarndyce’. Furthermore, this illustrates that Richard has been exploited by the legal system by immersing himself in the suit, and has been suffocated as a result. IV CONCLUSION The issues that resonate within both Bleak House and The Trial demonstrate that society is misguided in its trust that is placed within the legal system. Both Dickens and Kafka criticise that the system does not ensure justice, but instead, is an institution that ‘procrastinates, disappoints, tries [and] tortures’ its victims. Furthermore, both texts seek to convey a warning to readers to avoid the system, because it has the ability to consume and destroy you.

The names of the birds are very symbolic as they portray how the system slowly consumes people. When Miss Flite adds two extra birds to her collection, naming them after Richard and Ada, this represents how they have become imprisoned by the system. Additionally, Eichii Hara considers that ‘Richard is

THE OBITER 19


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NEW SOUTH WALES V CANELLIS (1994) 181 CLR 309 AN ANALYSIS

Part A: How has this case been treated by subsequent decisions? Canellis has been cited in 64 decisions across Australian jurisdictions, receiving positive treatments. It has been applied numerous times and followed in three decisions. It has not been overruled thus far. Frances Gibson said the law witnessed further unsuccessful attempts to extend Dietrich to civil arena after Canellis. In deportation, the Federal Court refused to apply Dietrich to ‘an administrative review conducted by a tribunal no matter how serious the consequences for the individual concerned’. Similar result happened in taxation. The rationale seems to be that in criminal matters, more pressures are put on legal aid authorities to take action or the accused of a serious offence may go free without trial. Whereas in civil matters, these pressures are absent, and stays do not assist applicants. She raised the question of scope of interpretation and anticipated that the rationale will continue to expand in the future. Its positive treatment in Nguyen will now be examined. Final appeal was made to Full Court with the submission that Dietrich should apply to other kinds of proceedings which exposed individuals to the risk of severe punishment and where there is a commission of crime. The court considered Dietrich and explained why deportation is not a criminal proceeding. The court then followed Canellis and adopted its reasoning. Their Honours also found no indication of applicability of Dietrich to administrative hearings, including those conducted by AAT. Their Honour further developed Canellis in that Dietrich did

not apply to an administrative review by a tribunal, regardless of the seriousness of consequences. The court agreed Canellis to be good law for several reasons. First, procedural fairness did not extend where the decision maker, i.e. AAT, did not have power. Second, Dietrich principle was still available at some point in likely course of the process. Third, such extension would make distinguishing other cases difficult. Fourth, substantial public funding concerns would surface. Their Honours’ view was consistent with the authorities. A series of subsequent and latest authority adopted this stance. Burnett distinguished Canellis on the basis that forfeiture of property by State was an exception. His Honour cited Mansfield to simply show that Dietrich was applicable to forfeiture by State. Nothing indicated that Canellis was unpalatable. Part B: The Judicial Inquiry, established under s 475 of the Crimes Act 1900 (NSW) The branches of government are identified through: the identity of the actors, power exercised, and method of exercise. Commissioners under s 475 are appointed by the Governor with the advice of Executive council. This makes Commissioners appointees to public office under the government of the State , and so is accordingly executive actors. They are not persons attached to a court created by parliaments and vested judicial power by neither at the Commonwealth level nor State level. They serve at the Governor’s pleasure and can be removed at any time by the

Governor , unlike judges who require the request of both Houses on the ground of misbehavior or incapacity. Commissioners’ remuneration can be changed during his term, but judges’ cannot. Finally, Commissioners serve for only a limited time of the inquiry and do not have the judicial tenure up to the age of 70. These reasons make The Commission acts as an executive rather than a judicial officer. The power that The Commissioner exercises is also not judicial. The Commissioners are not deployed to determine a controversy between parties over pre-existing legal rights out of necessity, but courts must. The Commissioners have no power to make a legally binding determination, but courts do. The Commissioners, like tribunal, are allowed to make non-binding findings and not according to judicial process . The Commissioners conduct inquiries and then forward the report to the Governor. However, the courts cannot neither perform such advisory task nor make inconclusive declaration of rights. The courts also cannot be shepherded by an Executive or Legislative. This is because courts need to observe judicial process of equality, impartiality, independence. On the other hand, The Commissioners depend greatly on the Governor, an executive, for direction. Commissioners can only exercise power in pursuant of s 475, so do executives. They do not have power to change or add to the law but can only execute it. Therefore, Judicial Inquiry under s 475 bears executive identity, power and process.

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INDIGENOUS CRIME HOW MUCH TIME? A look at Australia’s indigenous sentencing laws by Ashleigh Piles It is no secret Indigenous people in Australia experience much higher rates of contact with the justice system than white Australians. However, a recent Australian Bureau of Statistics study indicates Indigenous offenders tend to receive prison terms 28 per cent shorter than their non-Indigenous counterparts for almost all crimes. An Indigenous Australian charged with illicit drug use is likely to receive a 40-month sentence where a nonIndigenous person will receive an average sentence of 70 months. Is our justice system over representing the Indigenous community or are we still trying to apologise for histories treatment of our Aborigines? Mr Andrew Baker, former Legal Studies teacher and principal says the nation has moved past the injustices. “I don’t think we feel sorry for them anymore but I do believe we sympathise with their circumstances and charge accordingly,” he said. Supreme Court Chief Justice Kourakis explained why sentencing in most

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criminal cases might appear inconsistent. “…They [judges] try and maintain consistency but consistency does not mean the very same sentence or penalty in every case. “There is a whole range of circumstances around the commission of crime that are taken into account [when sentencing] and accounts for the variation,” he said. The range of charges is determined by a combination of the defendant’s past criminal history, rehabilitation attempts, education and social opportunities. Judges are also allowed to consider other personal factors in order to reduce an individual’s sentence. This is where an offender’s Indigeneity may appear to award them a lenient sentence. Chief Justice Kourakis said, “It is important to remember that even the reasons why a person steals or acts violently may differ…” “Some offenders might be intellectually challenged – others might not have received education or social opportunities that others have received.


“Others, again might be drug addicted and others might have embarked already on courses of rehabilitation,” he said. Ultimately, a person’s racial background plays little role in determining a lesser sentence for a crime. For many years the media have been known to broadcast Aboriginal affairs with a sense of negativity. This includes airing the perception that Indigenous offenders are more likely to get off with lenient sentences than other Australians. Chief Justice Kourakis said the media report on crime in ways that create controversial conversations. “It is particularly good [for the media] if there are two camps who take opposing views,” he said. The media fuel debate by choosing to display the cases where a person of race has been awarded a lenient sentence for their crime – adding to the overrepresentation of the Indigenous community. “That’s the stock and the trade of the media but not always very helpful in informing the community,” Chief Justice Kourakis said. The problem with over representation of Indigenous people in Australia is that it’s more severe among youths.The ABS

revealed in June last year that over two thousand Indigenous prisoners are under the age of 24 - a statistic the Youth Court is all too desperate to change. Chief Justice Kourakis said the Youth Court in South Australia is about to embark on a program of a specialist Aboriginal court for Aboriginal youth. “…It will focus on promoting educational opportunities and involvement and work opportunities for Indigenous offenders, particularly trying to tackle truancy… “But that is in its early stages of development,” he said. He also said programs such as Nunga courts – which allow Indigenous Elders to take part in sentencing – is an example of how the courts are working towards supporting Indigenous youths. “Involvement of Elders is really important because it adds to the respect they have in the community and gives them a sense of responsibility…” Chief Justice Kourakis said. The perception of Indigenous people being favoured by our justice system is one that only reinforces white racial illusion and is merely a means of intolerance.

@AshleighPiles

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LAW AND LATTES Victoria was fortunate to interview Anthea Blagojevic to ask her some questions about her time in law school, and how she has taken on the work field after University. For this edition of Law and Lattes, we spoke with Image Source: Anthea Blagojevic Anthea Blagojevic, who completed her studies in 2013 at the University of South Australia. Anthea studied a Double Degree in Bachelor of Laws and Bachelor of Psychological Science with UniSA. After completing the Double Degree, she obtained a Graduate Diploma in Legal Practice with The University of Adelaide. While completing the GDLP, Anthea also completed a placement with Belperio Clarke. After finishing all of her studies, Anthea now currently works as a Lawyer for the Australian Executor Trustees in Wills and Estates. Anthea was recently appointed the new role of Senior Client Service Advisor.

Where do you work currently and what does your job entail? For my work I administer deceased estates. This involves working with highly emotional and grieving clients to complete the estate administration of the deceased. This involves dealing with and resolving family disputes, compiling relevant documentations for the preparation of the probate application, applying for and receiving probate, collecting assets, selling properties, distributing assets, maintaining communication with clients, being empathetic and professional and keeping detailed files. As part of my role I also work on legal files and deal with inheritance claims.

How has your life has changed since moving on from University and transitioning into the work field? I found that the transition was very smooth. While studying, I had always maintained parttime jobs and when I began my employment I was also studying to complete my GDLP,

24 THE OBITER


Our Publications and IT Officer Victoria Darzanos sits down with wills and es tates lawyer Anthea Blagojevic to find out about life after law school

so once again I had to balance study and work. The main transition with a full-time job was that it provided me with more structure and routine within my day-to-day life.

Is there any advice you can give students who may be transitioning into their first year in the work force? The advice I would give to students who are transitioning into working is to know that you are not expected to know everything. Most of what we learn is on the job, through practical experience and you will have time to adjust to the new environments. Although listening, communicating with other colleagues and interpersonal skills are crucial to working in the field of Law.

What piece of advice would you give to a law student? Ensure you break out of your comfort zones and make the most of every opportunity. An oral presentation or a moot may seem daunting in the classroom, but they become common practise that you learn to become comfortable with in everyday work life. Participating in extra-curricular activities will also enhance your knowledge and are helpful experiences. To make the most of your experience in Law School, don’t be afraid to make new connections and friends. Through making new connections, this will help you personally and professionally when it comes to moving forward in your career. Also, be involved with what’s happening within the local community and stay involved with current cases and the news. The law and perception of it changes and its always best to be up to date with current information.

“Lastly, challenge yourself and strive for excellence; this will boost your skill set and will expand your horizons for the future. “

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REFERENCES CORPORATE CRIMINAL LIABILITY (page 12) • • • • • • • • • • • • • • • • • •

R v Cittadini [2009] NSWDC 179 R v Colbert [2017] SASCFC 29 R v Denbo Pty Ltd (1994) 6 VIR 157 Alvesalo-Kuusi, Anne and Liisa Lahteenmaki, ‘Legislating for corporate criminal liability in Finland: 22-year long debate revisited’ (2016) 17 Journal of Scandinavian Studies in Criminology and Crime Prevention 53-69 Bittle, Steven and Laureen Snider, ‘From Manslaughter to Preventable Accident: Shaping Corporate Criminal Liability’ (2006) 28 Law and Policy 470-496 Clarkson, C.M.V, ‘Kicking Corporate Bodies and Damning Their Souls’ (1996) 59 The Modern Law Review 557-572 Clough, Jonathan ‘Will the Punishment Fit the Crime – Corporate Manslaughter and the Problem of Sanctions’ (2005) 8 Flinders Journal of Law Reform 113-132 Coffee, John ‘No Soul to Damn: No Body to Kick: An Unscandalized Inquiry into the Problem of Corporate Punishment’ (1981) 79 Michigan Law Review 386-459 Johnson, Chris, ‘Ten contentions of corporate manslaughter legislation: Public policy and the legal response to workplace accidents’ (2008) 46 Safety Science 349-370 Khanna, Vikramaditya, ‘Corporate Criminal liability: What Purpose Does It Serve?’ (1996) 109 Harvard Law Review 1477 McInally, Anne-Marie, ‘Corporate Manslaughter- does it have a place in NZ Law?’ 39 New Zealand Journal of Employment Relations 106-116 Ricketts, Aiden and Heidi Avolio, ‘Corporate liability for manslaughter: the need for further reform’ (2009) 13 Southern Cross University Law Review 57-86 Wilkinson, Meaghan, ‘Corporate Criminal Liability – The Move Towards Recognising Genuine Corporate Fault’ (2003) 9 Canterbury Law Review 142 Crimes Act 1900 (ACT) Criminal Code Act 1995 (Cth) Criminal Law Consolidation Act 1935 (SA) Sarre, Rick, ‘Sentencing those convicted of industrial manslaughter’ (Paper presented at sentencing conference, Canberra, 6-7 February 2010) 1-1 Trucking company boss Peter Francis Colbert again convicted over manslaughter death of employee Robert Brimson (13 September 2016) http://www.adelaidenow.com.au/news/truckingcompany-boss-peter-francis-colbert-again-convicted-over-manslaughter-death-of-employeerobert-brimson/news-story/308937f382dc42db3786e3891df13f4a

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LAW, ART AND LITERATURE (page 16) • • • • • • • • •

Dickens, Charles, Bleak House (Wordsworth Editions Limited, first published 1993, 2001 ed) Kafka, Franz, The Trial (Penguin Group Limited, first published 1925, 2010 ed) Brodey, Emma, Birds and Cages in Bleak House <https://dickens.ucsc.edu/programs/hs-pdfs/emmabrodey.pdf> Brooke, Henry, Charles Dickens and the Law: Bleak House and the Court of Chancery (5th January 2016) Henry Brooke <https://sirhenrybrooke.me/2016/01/05/charles-dickens-and-the-law-4-bleakhouse-and-the-court-of-chancery/> Hara, Eichii, Bleak House and the Reign of Metaphor <http://www.dickens.jp/archive/bh/bh-hara. pdf> Harwood, Catherine, Franz Kafka’s Literature and The Law (2007) Victoria University of Wellington <https://www.victoria.ac.nz/law/pdf/lawyers-as-writers/LAW-Harwood-Franz.pdf> Cliffsnotes, Critical Essays The Fog <https://www.cliffsnotes.com/literature/b/bleak-house/criticalessays/the-fog> Chapman, Michelle, ‘Equity in Bleak House – symbolism, metaphor and allegory’ on Fractal Myth (2002) <http://www.fractalmyth.com/essay/bleak.html> Author Unknown, ‘Naming and Violence in Bleak House’ on EstherHawdons Blog (30th March 2011) <https://estherhawdon.wordpress.com/2011/03/30/naming-and-violence-in-bleak-house/>

NEW SOUTH WALES V CANNELLIS (1994) 181 CLR 309 (page 21) • • • • • • • • • • • • • • • • •

Frances Gibson, ‘A Decade After Dietrich’ (2003) 41 Law Society Journal 52, 54 Nguyen v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 20 Bodenstein v Minister for Immigration and Citizenship [2009] FCA 50 WZAUO v Minister for Immigration and Border Protection [2017] FCCA 562 Burnett v Director of Public Prosecutions (2007) 21 NTLR 39 Mansfield v Director of Public Prosecutions (WA) (2006) 226 CLR 486 Australian Constitution Constitution Act 1934 (SA) Crime Act 1900 (NSW) Commonwealth of Australia Constitution Act Huddart Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330, 357 Judiciary and Navigation Acts (1921) 29 CLR 257, 267 Precision Data Holdings Ltd v Wills (1991) 173 CLR 167, 189 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 70 Nicholas v The Queen (1998) 193 CLR 173, 208-9 Field v Clark 143 US 649, 693-4 (1892) R v Kidman (1915) 20 CLR 425, 441

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Want to see your work included in the next edition? Send through your submission to publications@usalsa.org 28 THE OBITER

The Obiter Issue 20  

Issue 20, Trimester 2 2018

The Obiter Issue 20  

Issue 20, Trimester 2 2018

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