Page 1

I’m leaving this bar due to irreconcilable differences!

trimester 1 20

, Tri 6 1 e Issu

2016 , 3 r e mest


obiter

the

DON’T JUDGE A BOOK BY IT’S COVER...

The front page is in dedication to the Commonwealth’s Solicitor-General Justin Gleeson SC resigning due to “irreconcilable differences” with the Federal AttorneyGeneral George Brandis QC. “I wish we could all get along like we used to in middle school... I wish I could bake a cake filled with rainbows and smiles and everyone would eat and be happy..”

CONTENTS PAGE

FIND US ON SOCIAL MEDIA! THE OBITER

The Team ...........................................................PAGE 4 Editoral Page .....................................................PAGE 5 Coming Events ..................................................PAGE 6

www.facebook.com/theobiter www. issuu.com/theobiter

USALSA https://www.facebook.com/usalsainc

NEWS .................................................................PAGE 8

#usalsa

FEATURE .........................................................PAGE 13

Have a question? Something funny to share? Or just want to stay in contact with other law students?

BILLABLE HOURS ..........................................PAGE 16

Jump onto the Facebook page!

LAW & LATTES ...............................................PAGE 18 RATIO ...............................................................PAGE 19 IN CHAMBERS .................................................PAGE 22

ACKNOWLEDGEMENTS The Obiter team would like to acknowledge the support of USALSA Layout: Shannon Guerin Images are those of the authors. We do not own them. Details can be provided upon request. The views and opinions expressed in this publication are those of the individual authors and not those of the UniSA School of Law or USALSA.

a USALSA publication © 2016

3


obiter

obiter

the

the

MEET THE TEAM

Publications Director: Shannon Guerin

Publications Officer: Nicholas Karalis

Editor: Tom Edwards

Editor: Ella Cameron

Editor: Carly-Rae Austin

With Special Guest Contributors: Nicholas Karalis Patrick Tyson Bec Copeland Ella Cameron Edward Hewitt

Editor: Philippa Jones

FROM THE EDITOR I was offered, accepted and survived my first publication of the Obiter. Due to separation of powers, we said goodbye to precedents Georgie and Travis, and have welcomed a new team. My intent for the next three issues with myself as Publications Director is to fill the Obiter with as many legal puns as I can squeeze in.

selected. With the First Year Moot being held this week, I wish all of the competitors good luck. Stay tuned for more competitions being held over the next year. Don’t forget to sign up, as it is a great way to network, build on your advocacy skills, and looks great on your resume!

This edition has a feature on the rights of deaf people sitting on a Jury. Is it discrimination not letting them sit on a jury? A fascinating topic of law by Patrick Tyson.

We also see an introduction to a more light hearted side, with a mini UniSA Law School Trivial Pursuit. Can you get all of the questions right?

We have an introduction to the new USALSA Committee, with President Seamus Brand telling us what he wants to see happen for the next year. Just remember, we are always open to your suggestions and feedback!

With the obligation of exams just around the corner, I’d like to personally say good luck to everyone. I hope you’re all competent parties and have spent 10 weeks dedicated to the subject matter. Bec Copeland has written a great piece on the stress of law students and how to cope during our studies. It’s a worthwhile read at this time of the year. Maybe this magazine will be a great source of procrastination in between learning Victoria Park Racing & Recreational Grounds Co Ltd v Taylor? (We can go on that joint venture together). If not, you can always drown your sorrows at the Worldsend, but let’s not use it as a defence for neglect of duty to perform.

We have UniSA Alumni, Edward Hewitt giving a very special insight into his first court experience. A very useful read for all of the up and coming barristers out there! Many thanks to Danielle Loy for sitting down for a chat as Law & Lattes column. If anyone is interested in rural, Aboriginal law or Legal Aid, she’s definitely one to read about. We have a special report from the two mooting teams that were selected to go interstate for competitions. Congratulations on both for being

Shannon Guerin Publications Director

Seamus Brand Hannah Thomas Salsabil Hafiz

Remember, you could be on this list next edition!

4

5


obiter

obiter

the

the

COMING EVENTS November First Year Moot Semi - Thursday, 3rd November First Year Moot Final - Monday, 7th November Career Speed Dating - Tuesday, 22nd November

December Pubcrawl - Friday, 2nd Decmber Exam Period - 12th - 17th December

6

7


obiter

obiter

the

the

a “brand” new usalsa

8

Coming from the Activities Portfolio, I naturally have a very strong focus on social events and you’re already seeing this with our welcomeback barbeque, wine-tour and the return of the pub-crawl pop-up bar, and you’re going to continue to see that focus next year. The Law Ball will make a return, bigger and better than ever and we’ll also be moving the Tri 1 Pubcrawl to consolidation week, so you can deal with the pub-crawl hangover before having to worry about the Law Ball one. Despite my love for Activities, it isn’t my only cause of action (Law joke tally: 1). I want to help increase our presence at mooting events around the country, which is why we’re preparing a report with submissions from all intervarsity mooters from the last 12 months that I will present at the next Law School board meeting. I have a seat in these meetings and I plan to use it to bring your concerns to the Law School. I want to do more to fulfil the advocacy focus of USALSA (Law joke tally: 2), starting

I want to increase representation on USALSA’s general committee, starting with a first year subcommittee next year that I hope to turn into a

already, and next year I aim to have the USALSA office staffed daily so you can come to us directly with your ideas, ask for help with your studies, or even just hang out. Don’t worry, there’s a tangible benefit to this too: more networking opportunities and more giveaways (who doesn’t love free stuff??) So there you have it, all the stuff you should have found out from me during my election campaign that didn’t actually happen. I’m always up for a chat, so feel free to say hi if you see me trudging about in a sleep deprived state, or better yet, come and chat during my office hours, 11-1 every Tuesday in the USALSA office, it’s next to the Legal Advice Clinic on level two of the law school. There’s still room in my vision for more ideas and initiatives from you, come and let me know what it is you want to happen, and I’ll take care of the “making it happen” part.

Above all, I want to increase involvement. I don’t just mean attending events. I mean building a community. permanent position on the committee at our next AGM. As first years we faced unique problems and

Words: Seamus Brand with seeking better support for those wishing to travel to moot. I want to make the transition back to Uni after the summer holidays easier and more enjoyable as well. Yeah, I’m talking about O-week. I know we’ve already started classes while every other student is out there joining clubs and doing rock climbing but that doesn’t mean we can’t enjoy ourselves too (while we steal the free stuff the engineering society always provides). So make sure you’re around in the first week back next year, there’s going to be a lot more provided by USALSA than ever before.

needed more information on what exactly USALSA was – this is how we deal with those problems. I also want to make serving on USALSA a whole lot easier, the current timing of elections can make it really tricky to find your way on the committee while also adjusting to the struggles of that final trimester. I’m not going to lie, this one doesn’t have a particularly clear solution but I’m investigating every avenue I can including moving the date of USALSA’s elections (yes, we will still have elections, stop calling me a dictator). Above all, I want to increase involvement. I don’t just mean attending events, I mean building a community. A community where people stay at Uni outside of classes to chat with friends and enjoy themselves. A community where people will talk to USALSA cCommittee members regularly to give ideas and voice concerns. We’ve laid the groundwork for this

NEWS

NEWS

Over the last 2 months, we’ve had to appoint a few people to the empty positions on USALSA. All the successful candidates have had one thing in common: they laid out exactly what they wanted to do and how they were going to achieve it. Now I didn’t have an opponent in the election, so I didn’t have to lay out any kind of plan or mandate to win your vote (lucky me!). So I’m going to take a leaf out of those candidate’s books and lay out exactly what I want to do, and how I am going to achieve it. I’m also going to put to bed the rumour that I will turn USALSA into a socialist dictatorship. So here’s exactly what I want to do and how I’m going to make it happen.

I want to increase USALSA’s Education and Social Justice focus over the coming year, we made a big step forward last year with our health and wellbeing week but we still have a long way to go. We’ve already got the ball rolling with our Movember campaign and I want to do more fundraising and awareness raising initiatives like this more regularly. I have a personal focus on mental health; we need to learn how to look after ourselves now so we are better prepared to do it in the profession. You can look forward to chill-out sessions happening periodically in 2017: therapy dogs, meditation days, fitness events, BeyondBlue seminars and a partnership with UniSA’s counselling service. I can’t stress the last one enough, I use this service myself regularly to cope with the stress that comes with studying Law and I want to end the stigma surrounding seeking help when it all gets too much.

9


obiter

obiter

the

the

PLT FAIR The PLT Fair was held at the end of week 4, where students were given the opportunity to meet and seek advice from local and interstate PLT providers. Students were given oneon- one attention, aiming to assist them in making informed decisions about where to complete their pre- admission training. The exhibitors present this year were Australian National University, Leo Cussen Centre for law, The College of Law and The Law Society of South Australia.

LIFE AFTER LAW

WELCOME BACK

10

CONGRATULATIONS Congratulations to Patrick Jeremy, Grace English, Travis John, Laura Crase and Toni Rodriguez for winning the Joe Cinque’s Consolation competition run on the USALSA Facebook page. Remeber to like the page for your chance to enter in future competitions. Your feedback about what you want to see done by USALSA will be extremely valuable, and help shape the committee over the next year.

SPEED DATING The Speed dating event this year is going to be held on the Tuesday of week 9 (22nd November). This event is a fantastic networking opportunity for students to meet practising lawyers. The aim of this event is to spend a little time conversing with lawyers from different fields and ask any questions you may have about what it is actually like to practice law in the real world. Students do not need to be in their final years of law to attend, in fact it is recommended that first years attend as well to learn and ask questions about the many different fields which they may one day choose to practice.

The trimester 3 pubcrawl has been announced! Everyone get excited for a fun night of drinking on the final Friday of the semester, the 2nd of December. Congratulations to Natalia Reveruzzi for winning the USALSA design competition with “The Bachelaws”.

WINE TOUR On Sunday October 23rd, USALSA hosted a wine tour for the law students. It was a successful day with 21 people travelling to the Adelaide Hills. Many thanks to Pike and Joyce, Golding Wines, Shaw and Smith, Nepenthe and Maximilians Sidewood for having us. Congratulations to President, Seamus Brand for hitting a hole in one on the golf course at Maximilians Sidewood. He managed to score himself $1,000 in wine! Watch out for this event being held again in the future. This is one that people will be raving about for a long time yet.

Words: Shannon Guerin & Ella Cameron

NEWS

NEWS

On the 20th of September from 11am until 1pm, USALSA held a sausage sizzle in the law court yard as a ‘welcome back’ to all the students for the 3rd trimester. For a gold coin donation, students were able to select from a regular sausage in bread, veggie burgers, non-beef sausages and gluten free bread. A huge selection for everyone to choose from! Students were also able to select from a variety of soft drinks and juices. Luckily the bad weather held off, and the sunshine came out for the short period of time. It was a great opportunity for students to meet the friendly new USALSA committee and voice what they want for the next trimester.

On the Tuesday of week 6, USALSA organised a seminar aimed at preparing students for the challenges that potentially await them post graduation. Zachariah Reveruzzi spoke to students about his recent role as a judges’ associate in the District Court of South Australia and the application process for this. He also discussed competitiveness and provided some great tips in relation to interview techniques and resume builders. Secondly, Michelle Harvey discussed the likelihood of employment, some relevant statistics and also provided some great general advice for students looking for jobs. This included resume advice and what to expect at an interview. Thirdly, Trevor Edmond from Wallman’s Lawyers provided students with a fantastic insight into what employers are looking for in their graduates and the selection process. Trevor also touched on mental health in the profession including work place harassment and gave advice to students about how best to handle these issues if they were to arise. Lastly, Matthew Atkinson provided students with alternative career pathways to private practice and shared some very interesting stories from his own career.

PUBCRAWL

11


obiter

the

obiter

the

Words: Patrick Tyson

WELCOME DEAF JUROURS: HC SAYS NO The Jury Acts of each Australian state and territory have long prevented deaf persons from serving as jurors. In the wake of the High Court of Australia’s decision in Lyons v Queensland 1 (‘Lyons’), this fact and the associated legal and policy issues have begun to receive greater media attention.

President - Seamus Brand

Competitions Director - Cath Mwikya

Treasurer - Jessica Punch

Social Justice Director- Kelsey Tonkin

Secretary - Hannah Thomas

Marketing Officer - Alexander Jackson

Careers Director - Ella Cameron

Careers Officer - Maria Pappas

Publications Director - Shannon Guerin

Events Officer - Eden Panozzo

Sponsorship Director - Salsabil Hafiz Publications & IT Officer - Nicholas Activities Director - Georgie Grosset

Karalis Competitions Officer - Nava Avazpour

they will, for example, ‘well and truly interpret the proceedings and the jury’s deliberations to the

The Jury Acts of each Australian state and territory have long prevented deaf persons from serving as jurors. must be excused from jury service because: ‘[t] here is no provision in the Jury Act to swear in an interpreter for a juror. It also isn’t possible to have another person in the jury room other than the jurors and bailiff whilst deliberating.’2 The Deputy Registrar justified the power to exclude Ms Lyons under s 4(3)(l) of the Jury Act 1929 (Qld) (‘the Act (Qld)’): The following persons are not eligible for jury service … (l) a person who has a physical or mental disability that makes the person incapable of effectively performing the functions of a juror.3

juror’ or that the interpreter will not participate in or disclose anything about the deliberations. Ms Lyon’s contention that s 54(1) of the Act (Qld) empowers a court to grant leave to an Auslan interpreter to be present during jury deliberations could not be sustained. That power can only grant the officer in charge of the jury or other persons leave to communicate with the jury whenever they are ‘kept together’ (e.g. outside the court); it is not a power capable of granting an interpreter leave to be present during jury deliberations.6

FEATURE

NEWS

The University of South Australia Law Students’ Association (USALSA) is proud to annouce that we have a full committee for the 2016/2017 year.

In Lyons, the High Court of Australia unanimously dismissed an appeal by Ms Lyons, who argued that she had been subject to unlawful discrimination under the Anti-Discrimination Act 1991 (Qld). The Deputy Registrar of the Ipswich District Court excluded her from a jury selection process in 2012 because she was a ‘profoundly deaf person’ who required the services of two Australian Sign Language (‘Auslan’) interpreters. The Deputy Registrar wrote to Ms Lyons, stating that she

Nettle JJ noted that the common law has long required that a jury be kept separate. The inclusion of a person other than a juror (i.e. a 13th person) in a jury room during deliberations is an ‘incurable irregularity’ which vitiates a verdict, regardless of whether the person participates in jury deliberations. This is particularly so where the 13th person has not sworn or affirmed an oath.4 The presence of an Auslan interpreter would be impermissible as the Act (Qld) contains no specific provision allowing an interpreter to be present during deliberations.5 Nor is there a provision allowing the administration of an oath, where the interpreter swears or affirms that

In a joint judgment, French CJ, Bell, Keane and

12

13


obiter

obiter

the

the

For the law to permit deaf jurors, Queensland Law Society President Bill Potts explains that, ‘[a] ll that needs to change is to enable the translator to be in the jury room, to well and truly translate what is being said and to play no part in the deliberations of the jury.’10 Such amendments would bring Australia in line with USA, NZ and Ireland, where deaf jurors can serve. In USA, deaf persons have served, even successfully as jury foremen, since 1979.

For those reasons, the plurality held that the Act (Qld) required the Deputy Registrar to excuse deaf persons where they required the assistance of an Auslan interpreter to communicate, because in the words of s 4(3)(l) that person would be ‘incapable of effectively performing the functions of a juror’.7 Consequently, the exercise of powers in conformity with the Act (Qld) did not constitute unlawful discrimination.8 In a separate judgment, Gaegler J reached the same conclusion, albeit through a different interpretive approach to the ADA and Act (Qld).9

In Australia, Western Australia is the only jurisdiction which currently permits the empanelment of deaf jurors. Western Australia’s approach presumes deaf persons can serve, but leaves the court with a discretion to excuse where a deaf person demonstrates an inability to serve effectively as a juror. An example might be one which Ms Lyons conceded: a deaf person may be unable to serve effectively where voice identification evidence will be an issue at trial.11 Western Australia amended its position in response to recommendations from the Law Reform Commission of WA (2010).12

In rejecting legislative change, three arguments are commonly presented: (1) there cannot be a 13th person in the jury room, (2) deaf jurors will have difficulty comprehending legal concepts and general courtroom discourse, and (3) there would be no way to challenge the completeness, accuracy and objectivity of an interpreter’s translations. First, although the common law prevents a 13th person from being present during deliberations, as Lyons establishes, simple legislative amendments can provide the necessary exceptions. Secondly, over the last decade, four different Australian studies have found that legal concepts were effectively translatable into Auslan and there was no significant difference

a professional distance.15 On top of this, they would also be bound by an oath. Nonetheless, the lingering doubt which arises might result in the empanelment of deaf jurors or the final judgment being subject to constant challenges and appeals. Defence lawyers may argue that their client’s right to a fair trial would be or was prejudiced. Such challenges have become common in Ireland, since deaf jurors were permitted to serve on a case-by-case basis.16 While many deaf persons see it as their ‘civic duty’ to serve as a juror, jury service is not an absolute right or duty. It is a privilege which the law affords citizens. Nonetheless, the inclusion of deaf jurors would provide a truer and wider representation of Australian society. This would be a significant step, as judgement by peers is a core rationale for the existence of a jury. This article only highlights the main issues vis-à-vis deaf jurors; much more can be said. This is a topic which can elicit strong emotions though. The passionate and divisive nature of the discussion is guaranteed to cast the issue under further spotlight. [2016] HCA 38 (5 October 2016) (‘Lyons’). Ibid [10]. Jury Act 1929 (Qld) s 4(3)(1) (‘JA (Qld)’). 4 Lyons [2016] HCA 38 (5 October 2016), [33]. 5 Ibid [35]. 6 Ibid [34]. 7 Ibid [38]. 8 Ibid. 9 Ibid [40]-[52] (Gaegler J). 10 Annie Guest, Deaf jurors serve in US and New Zealand, but High Court blocks Australian Gale Lyons’ bid (5 October 2016) ABC News <http://www.abc.net.au/news/2016-10-05/ deaf-jurors-allowed-in-us,-nz/7905810>. 11 Lyons [2016] HCA 38 (5 October 2016), [31]. 12 Law Reform Commission of Western Australia, Selection, Eligibility and Exemption of Jurors, Report No 99 (2010) rec 56.1. 13 NSW Law Reform Commission, Blind or Deaf Jurors, Final Report No 114 (2006) rec 1(a)–(c); Queensland Law Reform Commission, A Review of Jury Selection, Report No 68 (2011) recs 8–8, 8–9, 8–14; Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws, Report No 124 (2014) recs 7.12-15. 14 Jemina Napier and Alastair McEwin, ‘Do deaf people have the right to serve as jurors in Australia?’ (2015) 40(1) Alternative Law Journal 23, 25-7. 15 Jemina Napier, Rachel McKee and Della Goswell, Sign Language Interpreting: Theory & Practice in Australia and New Zealand (Federation Press, 2nd ed, 2010). 16 Michael Farrell, ‘Allowing Deaf People to Serve as Jurors: An Irish Perspective’ (2011) 42 Discrimination Law Association Briefings 30, 30-1. 1

2

Therefore, deaf persons who require an interpreter must be excused.

14

While Australian Jury Acts no longer automatically exclude deaf persons from serving as jurors purely because they are deaf, the current iterations of the Jury Acts effectively disqualify deaf persons for the reasons identified in Lyons – the Jury Acts do not contain express provisions permitting an Auslan interpreter to be present during jury deliberations or to swear or affirm an oath. The exclusionary wording of the Jury Acts, while not uniform, are analogous to that used in the Act (Qld). Therefore, deaf persons who require an interpreter must be excused because they cannot effectively perform the functions of a juror, particularly confidential deliberation.

While similar recommendations have been made by the NSWLRC (2006), QLRC (2011) and ALRC (2014), those recommendations have not been implemented in the relevant jurisdictions.13

in the comprehension of courtroom discourse between hearing and deaf jurors; the level of comprehension was determined primarily by their level of education a point equally applicable to hearing jurors.14 The third argument against amendment generates the greatest difficulty. Secrecy of jury deliberations means there would be no way to observe whether a deaf person’s decision was influenced by any overt or subtle changes in the interpreter’s translations – slang, body language, facial expression or omission of information. Prejudicial translations may arise because a translator has a particular view of case at hand. It could be said, however, that accredited Auslan interpreters can be relied upon because they are bound by a code of ethics: to maintain impartiality and confidentiality, interpret faithfully and accurately, and uphold

FEATURE

FEATURE

Australian Jury Acts: Legal and Policy Issues

3

15


obiter

obiter

the

the

BILLABLE HOURS Investigating the serious problems

Dear BH,

Dear BH,

My non-law friends keep complaining about how much study they have to do. Like, how hard could assignments on hair braiding and making Easter egg baskets really be?

What is the average salary of a managing partner?

Regards, Dear BH,

Dear BH,

Frustrated

How do I take better notes in class?

I am continuously told that I need to participate in lots of extra curricular activities to balance out my resume. However, I have no other talent, interests or passions.

Dear Frustrated,

Regards, Sticky Notes

You pick up a pen from the marketing department, grab a crumpled piece of paper from your bag...oh wait, I got the degree WRONG. That’s IR. For law? Take a second brain, and your textbook that is the size of a small child.

Regards, Lazy Dear Lazy,

16

Love BH xx

Love BH xx

7.0 GPA

Dear BH,

Dear 7.0 GPA,

What’s your advice to first years?

Yes. If you are a god; or if you’re a demon. You could’ve made a deal with a demon for all we know, just saying.

Regards, First Year

It’s too build up resilience for future humiliation in court.

Love HB xx

Dear First Year,

Love BH xx

Love BH xx

Dear Gold Digger,

Regards,

Regards,

ATTEND EVERY CLASS. Missing one class is like not being potty trained as a child.

Gold Digger

Why are all the lectures on the fifth floor? It’s embarrassing to look so unfit in front of my peers!

Are HDs in law possible?

Dear BH,

Regards,

Hmmm a law degree sounds like a lot of effort just to land yourself a sugar daddy? Maybe you should take up modeling? Or become a full time gym junkie? OR!! Apply for a receptionist job at a law firm ;) WE ARE NOT SUGGESTING THIS IS A GOOD IDEA (but if you were to do it that’s how we would go about securing the most eligible bachelor in Adelaide!) In saying this, if you’re already doing a law degree, you clearly have a brain of some sort so our advice would be to use it!

I am sure that if you put your problem solving skills to work you could discover a new interest. What did you do before you were a law school nerd? What would you do with your time if uni was cancelled for the rest of the year and you had no work/ family commitments? Think about what you enjoy doing and it wont feel like effort at all!

Love BH xx

Am I in this for the wrong reasons?

Love BH xx Dear BH,

Unfit Dear Unfit,

BILLABLE.. HOURS

BILLABLE.. HOURS

Dear Sticky Notes,

WE FEEL YOUR PAIN! However, unfortunately this is just another lemon life has given you, so, you need to learn to make some lemonade! Appreciate that not everyone can be a law students…. Lol but seriously where would we be withoutall of those primary school teachers/ jewelry makers?? Diversity is important so try and keep this in mind next time you feel your fist clenching when you’re thinking about how many hours of admin law you have got waiting for you!

I am thinking of doing some work experience at a law firm in pursuit of finding a sugar daddy so I can drop out of law school. I have no intention of practicing law, I just thought it would be a great platform to build on my lifelong dream of being a trophy wife.

Words: Ella Cameron, Nicholas Karalis & Salsabil Hafiz

*The views and opinions expressed in this column are purely satirical, and belong to the individual authors and not those of the UniSA School of Law or USALSA Inc.

17


obiter

Words: Shannon Guerin

the

BUSH LAW With Danielle Loy Thank you for spending the time with me today. To start off with, what area of law are you in, and what made you decide to get into that area? After completing my studies in Adelaide, I worked as an International Humanitarian Law Officer before returning to Alice Springs to work in Aboriginal Legal Aid. This is a special interest I have, with researching that mainstream and Aboriginal law might coexist. This interest developed as a result of working in Legal Aid services and experiencing firsthand the absolute failure of the mainstream Australian legal system to address the needs of the first Australians. I currently am working with tutoring law students online, and support them with whatever subject they need support with at the time as I have decided to expand my family.

18

I have been working in the legal industry since I was 22, and have experience in criminal, family and civil law. My legal practice has mainly been in Legal Aid services. My legal tutoring experience is through Universities that I tutor for, and I teach all areas of the law. You seem to have done so much with your time. Do you have one major career achievement/highlight? My career highlights have been varied and numerous, but at the top of the list is producing a documentary about the possibility of Aboriginal law and mainstream law working together which was awarded a human rights award. Also, winning cases where justice was served for people who would not otherwise have a voice. What is something that you have learnt by being a lawyer out in the bush? I have realised working in Aboriginal Legal Aid, that there is an unequal ground. Although indigenous and non-indigenous people are very different, they share the same human frailties and the need for love, freedom and a sense of empowerment.

I decided to go rural because I found a lot of legal practices in the city are about money and ego. Practicing law in Alice Springs and remote Aboriginal communities at ‘bush courts’ was incredible, educational, eye opening, frustrating, shocking, heart warming and inspiring. For someone who has spent so much of their time dedicated to Legal Aid, what is your belief about the principle? Should clients have to pay for services they use in all circumstances? Legal services are very costly even for employed people. There is just no way unemployed or other vulnerable members of society could afford to be able or to engage with legal representation or advice without Legal Aid. Everyone deserves the right to legal representation and a fair trial. Legal Aid makes this possible where it would otherwise be impossible. Finally, do you have any words of advice for our up and coming law students? The law can be an ass but it can also be one of the most powerful tools you will ever have. Always strive to turn the ass into a tool that strives for and achieves justice. Never sell your integrity for money or power. Legally represent your clients with the integrity with which you would want to be represented.

FIRST TIME IN COURT

Words: Edward Hewitt

I’ve been practicing law for just over a year. Within three weeks of my admission to practice, I was to appear before Tanunda Magistrates Court representing a client who had been charged with drug offences. I was not prepared. The problem was that my client had instructed me less than a week prior to the hearing.

I was pleasantly surprised when I entered the courtroom. The Sheriffs Officer greeted me on arrival and took down my name, noting that my client was present (if he hadn’t been he would have been arrested as he was on bail). The prosecutor was a uniformed police officer who also greeted me and provided me with some On the commute to court, waves of anxiety evidence and disclosures. The court was so laid set in. It’s the same feeling you get before you back and informal... until the Magistrate knocked have to moot in front of your classmates, only on the door. this time the stakes are a little different – your In hindsight I think the Magistrate could sense client’s future, the rapport between you and your that this was unfamiliar territory for me. Aside client, your reputation… and potentially your from mooting a little during my degree, I felt like liver later on if things don’t go so well. I had no idea what I was doing and that I had no By the time I entered the courtroom my heart control over the outcome. was racing, my stomach was sinking and I was When the matter was finally called on, I stood up, terribly underprepared because I hadn’t had shaking at the knees, and launched into what I sufficient time to spend with my client to take knew from mooting, announcing my appearance. detailed instructions.

It’s the same feeling you get before you have to moot in front of your classmates, only this time the stakes are a little different - your client’s future. What was going to happen? I had one goal in mind – to secure an adjournment to allow more time to advise the client on whether they should enter a plea or contest the charges. A flurry of questions was circling in my mind. What if the Magistrate is irritated that there will be a delay? What if I am asked a question I don’t have sufficient knowledge to answer? What will the prosecutor and the other people present in courtroom think if I made a mistake?

Usually in a moot the prosecution will make submissions first, so I sat down. The Magistrate looked straight towards me. Was I supposed to say something? What do I do? I soon learnt that prosecution doesn’t always have any submissions to make. They might give the Magistrate a brief rundown of the facts occasionally, but most of the time in simple directions hearings you will be the only person with sufficient information available to assist the court.

RATIO

LAW.. &. .LATTES

What types of legal experience do you have?

You were born in Adelaide, and mentioned how you completed your studies here. What made you decide to go rural? How different is it working in the outback compared to the city?

obiter

the

19


obiter

obiter

the

the

Court appearances in my experience never exceed five minutes in length (unless you are entering a plea or making submissions), and of that I actually spoke one to two minutes. Mooting is a great tool. If anything, it over prepares you for your first court appearance.

I stood up, explained that I had only been instructed in the matter very recently and as such requested an “adjournment for instructions.” The presiding Magistrate allowed the adjournment and that was that. Finished. I would revisit the issue two months later,

Hiccups will occur, your client might not answer the phone, you might turn up to court with minimal to no preparation - not because you haven’t done your job - but because you’ve run into some bumps along the road. It turns out these hiccups aren’t rare. In fact, they happen all the time and the court is aware and understanding of this. Unless you have neglected to prepare or made a serious error, there is nothing to worry about. I can guarantee you that as long as you prepare as best you can the majority of Magistrates will go easier on you

20

in a far better position to assist the court.

than Judges Davis, Lacey and Danambasis.

Since then, I’ve requested adjournments for various reasons more often than I’ve had to make submissions to the court. For most hearings, the commute to court is longer than the appearance itself.

Don’t stress and always ask questions of senior practitioners. Many make themselves available to assist juniors at any time, and remember that everyone in the profession, regardless of seniority or experience, is still learning every day.

Starting out by making applications for adjournments and other similar processes is great because it familiarises you with court etiquette and general procedural matters. When the time comes to make detailed submissions, you won’t even feel nervous because of these experiences. Mooting at university is different to the kind of appearances you will be making in your early days of practice. In fact, mooting is a lot more difficult. In moots you are often expected to make detailed submissions for ten to 20 minutes. The majority of Magistrates

Words: Bec Copeland

Law school is, by no stretch of the imagination, ‘easy’. No doubt, people you have spoken to prior and during law school have emphasised its conceptual difficulty. But secretly, deep down, all of us believed that law school would be something we could conquer. We all hoped that passers-by were simply exaggerating, and perhaps we possessed a level of understanding that would pave the way to excellent grades and a happy work, life and health balance. Sadly, along the way I think all of us have realised that this daydream will be nothing more than that - a dream. There were no exaggerations when you were told law school would be hard. There is a reason why strangers are endlessly impressed to hear that you study law. It’s hard. And you know what? No-one is expecting you to effortlessly glide through this course, so neither should you. Perhaps it’s time to learn how to cope with not coping. You’re not in high school anymore, no-one is telling you what to do, so you’re never going to feel like you have two feet on the ground. Law school is like being plunged into the deep end, so you’ve just got to wiggle about a bit and hope it looks like you’re swimming. I am pretty attuned to what kind of student I am. I am a multi-tasker, a procrastinator, a perfectionist and a professional panicker. I balance full-time uni with part-time work, an internship, relationships, and a mental and physical health routine. I panic when I prioritise work over uni, and then panic when I prioritise uni over my health. When the life of a student is built upon panicking, you just have to remember that everyone thinks they’re doing it wrong, so you just have to find a method that works well for you. I’ve recently discovered re-writing my whole assignment

on the day, then submitting it with five minutes to spare is a good method for me. Although I wouldn’t recommend this, it turns out I work well with a box of tissues in one hand and a bar of chocolate in the other. I call this ‘coping’, but in reality, no-one really ‘copes’ at law school at all. So let’s be real. Your ducks will never be in order, all you have to do is accept this and follow these simple tips to cope with that. First of all, health comes first. No matter how hectic uni or work is, nothing is worth compromising your mental health. Physical health goes hand in hand with mental health for me, so the gym often ends up being my outlet. Although this may not be the case for you, always have a type of outlet to alleviate stress. Second, when it comes to relationships, the friends worth keeping will not criticise you for not being at every social event. It’s okay to miss some things, then make up for them later. Your retail or hospitality job won’t fire you if you swap some shifts when you have a thousand words to go and two hours left to write them. Finally, although being up to date with every textbook and case reading is the ideal, don’t beat yourself up if you can’t keep up all the time. Sometimes the lecture slides and a few case extracts will simply have to do. Nothing may be running the way you planned, but that doesn’t mean you’re going to fail. Although coping with law school may not feel like coping, putting one foot in front of the other and not giving up is often a great way ‘not to cope’.

RATIO

RATIO

Remember that everyone in the profession, regardless of seniority or experience is still learning every day.

COPE WITH NOT COPING

21


obiter

words: Hannah Thomas and Salsabil Hafiz

the

obiter

the

SIR HARRY GIBBS MOOT Hannah Thomas, Catherine Mwikya and Salsabil Hafiz travelled to Melbourne in late September to compete in the Sir Harry Gibbs Constitutional Law Moot Competition with 19 other teams from around Australia. They say that ‘the greatest ideas come while walking’. That’s a lie. No normal law student goes walking willingly. In our case, the greatest idea came to Salsabil when she was sleep deprived and a little too invested in Constitutional law, ‘I should do a moot well beyond my understanding of Constitutional law! Yeas!’ *cue audience groaning in the distance* Soon enough, she convinced Hannah and Catherine to sign up. It went something like this. Hannah and Catherine: ‘we are talking about a Constitutional law moot. Can we do this?’ Salsabil: ‘what…like it’s hard?’ Hannah and Catherine: ‘ooooo guuuuuurl. Legally Blonde reference, sign us up!’

#GibbsMoot Seriously, Melbourne Law School was freakin’ huge and extremely prestigious. Melbourne University Law Students’ Society were fantastic hosts, and it was a was well organised competition. After the first preliminary round, we realised that our knowledge of the law, despite countless efforts, was severely lacking. As second years, we were competing against fourth, fifth years and some were jurist doctorate students. It almost felt like a battle between Dobby and Hagrid. Yeah, okay, Dobby could have used his elfish powers but Hagrid could just...sit on him. Essentially that’s essentially what happened to us. Now the question is, did we get anything right? We did. We pushed the limits of our capability with what we had learnt in law school and took ourselves out of our comfort zone to compete. Our advocacy was fantastic for three second-year law students.

#RealTalk

#ThreeAmigos

There is just something about mooting that brings you this odd sort of satisfaction. Almost every mooter agrees with that. It’s almost like ‘The judge punched me in the face…it was awesome.’ No matter what the outcome is, you pat yourself on the shoulder and say ‘I did it.’

There were moments when we wanted to kill each other, but that is what happens when you spend every single day in each other’s presence for weeks. The three of us bonded in a way no one could ever understand. Hannah reminding Salsabil to have breakfast every morning, Salsabil lovingly terrifying Catherine with over enthusiastic pep talks and falling asleep on each other’s shoulders on the plane home out of sheer exhaustion. It was a brilliant experience that none of us would ever take back.

Would we do another moot again? YES. DO ALL THE MOOTS! If anything, the Gibbs Moot taught us a great deal; it also increased our confidence and oral speaking abilities immensely. We have learnt proper court etiquette and how to approach situations when

22

Not going to lie, it was hard, but hey, no one said anything amazing would come easy. #workworkworklearnlearnlearn Once we got the question, we realised how much this competition was going to test our knowledge (and existence). All of us all invested a lot of time into this moot, early mornings, late nights and no holidays between trimesters two and three. Frequent brain failure became the norm. Sleep seemed like a distant memory. Catherine got into the habit of taking power naps to wake up and yell out important cases. Many moments of ‘Eureka!’ ended up with ‘…mmm better not’. Fat Amy, anyone? Whatever we did, we did as a team. Unfortunately, we faced many problems along the way. This thing called ‘life’ got in the way. It affected us significantly, but we all pushed through and did the competitions. Not going to lie, it was hard, but hey no one said anything amazing would come easy.

#HCAfangirling The grand final was held in the High Court of Melbourne presided over by the Honourable Susan Crennan, William Gummow and Ian Callinan. It was a fangirl moment for all of us just to be in the same room as these former High Court justices. Normal people fangirl about Beyonce. We fangirl about High Court justices. Both grand finalist teams, from ANU and Melbourne Law School, were incredibly talented in their mooting and knowledge of the law. For eighty minutes, all of us sat there in awe watching the grand finalists apply the law and refer to previous judgments of the justices before them. We had one unison thought: Beyonce’s got nothin’ on these guys.

There is just something about mooting that brings you this odd sort of satisfaction. Most of the time you do know the answer, but panic makes you think ‘oh my god, I am dumb as a doorknob’ and you glance at your instructing solicitor who looks at you like ‘you is smart, you is kind and you is important’; this actually happened. Another aspect that is really under appreciated in mooting is organisation. It is imperative and an essential skill. Hannah is a human filing cabinet who became accustomed to reading her team- mates minds. A lot of people ask if mooting scary. Of course, it is. The nerves do not go away, but you learn to deal with them and hide them through confidence. Like, yes I am dying on the inside but look how flawless I look in this suit.

A huge thank you to Sue Milne for your time and support. We are incredibly grateful. A massive shout out to our awesome coach, Travis Shueard, for being there with us at every step, all the way to Melbourne and back. We could not have done it without you.

IN.. CHAMBERS

IN.. CHAMBERS

you do not know the answer to the judge’s question.

23


obiter

the

words: Patrick Tyson

obiter

the

KIRBY CONTRACT MOOT

IN.. CHAMBERS

From 26th to 29th September 2016, Leo ColdbeckShackley, Alyse Dickon and I competed in the Kirby Contract Law Moot competition. This marked the first time a team from UniSA has competed in this annual competition.

24

Despite only being in its sixth year, this moot competition has grown to become the biggest in Australia. This year, 32 teams from 22 Australian universities participated. It is organised and held by Victoria University at its Melbourne campus. As the competitionâ&#x20AC;&#x2122;s name indicates, the moot problem only focuses issues of contract law (and related issues such as restitution for unjust enrichment). This may be a key reason for its burgeoning popularity. The competition is also unique as it always involves a dispute which is proceeding to arbitration, rather than an appeal to a higher appellate court. As the moot organisers explained, this choice was made to reflect the increasing use of alternative dispute resolution for commercial disputes. In this yearâ&#x20AC;&#x2122;s grand final, Queensland University of Technology defeated Griffith University (2015 winners). The presiding members of the (grand final) Arbitral Tribunal were the Hon. Michael Kirby AC CMG, Simon Marks QC, Ian Martindale QC and Michael Wyles QC. The opportunity to watch these esteemed individuals at work was a highlight of our whole experience. Mr Kirby, in particular, was as articulate and witty as ever. At the conclusion of the competition, four teams were presented with a total of eight awards. Our team was proud to be presented with the awards for Best Written Memorandum for Claimant and Highest Scoring Newcomer Team. This raises the point that the grand final and awards ceremony were not simply the culmination of three days of mooting. It reflected the end to months of preparation. Approximately two months prior to the oral hearings, teams were required to submit a Written Memorandum for Claimant, followed by a Written Memorandum for Respondent one month later. Each memoranda could be no longer than 17

pages. Considering the range and depth of the issues presented in the 42-page long moot problem, remaining under the page limit forces teams to write in a very concise but in-depth manner. While all this may sound daunting, there are many academics and lawyers who will be willing to assist your team during the preparation process (eg by commenting on your written submissions and being judges for practise moots). All one must do is muster the courage to ask. In our case, Juliette McIntyre, Tracey Coleman, Anja Kantic and Steven Rainieri were kind enough to lend their time and knowledge during the preparation stage. Their assistance was invaluable and we cannot stress enough the importance of continuously asking questions when participating in moot competitions. Having a team coach to assist us in the preparation phase and during the oral hearings was not something we arranged though.and failing to do this is one aspect we regret. We recommend all students who plan to compete in the future not to repeat our mistake. The guidance of a coach, especially during the oral hearings, is an element which absolutely makes a difference. Competing was a learning experience none of us will ever forget and we recommend all students to consider participating in any one of the many Australian moot competitions. These competitions are a fantastic way to improve time-management, written advocacy, legal research and oral advocacy skills. The experience and skills earned are not only useful for students looking to practise law, but they are invaluable for all law graduates. In particular, increased self-confidence and oral advocacy skills are traits that all employers will surely admire. In the tough job market, demonstrated participation in extra-curricular activities may help you get that edge over other candidates.

25


obiter

obiter

the

the

What date was the Supreme Court of South Australia established? s

How many seasons of Law & Order: Special Victims Unit is there? What would you find in LB1-29? What NFL Team did O.J. Simpson briefly play for before his conviction? How many properties does Australia legally have on the World Heritage List?

In what year was the University of South Australia’s law school first established?

According to the University of Sydney, what is the most popular double-degree combination?

Who played the lawyer, Elle Woods in the 2001 American comedy, Legally Blonde? What direction does the law building face?

At what age must judges retire in the South Australian District Court?

Which sprinter was jailed for the murder of Reeva Steenkamp? s

According to USA Today, up until June 2016, approximately how many legal cases has Donald Trump been involved in? What law is said to be “"Everything is related to everything else, but near things are more related than distant things"?

One of the first climate change cases in Australia was the _______ Power Station case. Who wrote the book about a lawyer representing black defendants in a highly publicised trial, To Kill A Mockingbird?

Which Professor is taking Sports Law in 2017 at UniSA? What Australian Act sets up the “legal framework to protect and manage nationally and internally import flora and fauna”?

Name the magazine you are currently holding.

How many chief justices have sat on the Supreme Court of South Australia? s

Who famously sued the Hangover 2 due to a “copy” of one of their distinctive tattoos being used?

What was the first case decided by the High Court of Australia? How long was housewife Teresa Giudice (from Real Housewives of New Jersey) sentenced to jail for? Besides Adelaide, name all six locations on the District Court Circuit. How many AFL Essendon players, past and present, were found guilty in the doping scandal?

What would I find at 15 Frobisher Road, Elizabeth SA 5112? True or False: The Sex Discrimination Act 1984 (Cth) allows for all genders to become members of any sport they participate in? What does the ERD Court stand for? What children's song is contained in the song 'Down Under' (and was established in a 2009 High Court ruling)?

Name the case about the “two-headed baby” that had been still-born in 1868. One of the most famous cases of art theft occurred in 1911 on the 21st of August, after Vincenzo Peruggia stole what painting?

26

27


obiter

obiter

the

the

BEST LEGAL MOVIE QUOTES

ANSWERS

It’s the end of the year where your energy is running low, and you are severely lacking motivation. So, why not jump onto Netflix and watch the greatest law movies as a bit of procrastination? It might not earn you a HD, but it can be an exaggerated insight into the world we will enter when we graduate.

1

Legally Blonde (2001) “Exactly. Because isn’t the first cardinal rule of perm maintenance that you’re forbidden to wet your hair for at least 24 hours after getting a perm at the risk of deactivating the ammonium thioglycolate?”

2 January 1837 18 Seasons

2 My Cousin Vinny (1992) “Uh... everything that guy just said is bullshit.

Moot court

Thank you.”

San Francisco 49ers

2008

19

Reese Witherspoon

Law and Art

North

Age 70 3,500 cases Tobler’s law/First Law of Geography

Oscar Pistorius Hazelwood Harper Lee

9 Environment Protection and Biodiversity Conservation Act 1999 (Cth).

Mike Tyson The Obiter

Elizabeth Magistrates Court

15 months Mount Gambier, Port Augusta, Berri, Port Pirie, Whyalla, and Port Lincoln 34 Doodeward v Spence

guilty. I thought it was obvious from the word, ‘go’. Nobody proved otherwise.” “Nobody has to prove otherwise. The burden of proof is on the prosecution. The defendant doesn’t even have to open his mouth. That’s in the constitution.”

5

A Time to Kill (1996) “Can you see her? Her raped, beaten, broken body soaked in their urine, soaked in their semen, soaked in her blood, left to die. Can you see her? I want you to picture that little girl. Now image she’s white.”

6 To Kill A Mocking Bird (1962) “Now Gentlemen, in this country, our

Rick Sarre

Dalgarno v Hannah

3 Liar, Liar (1997) “Stop breaking the law, asshole!” 4 12 Angry Men (1957) “It’s hard to put into words. I just think he’s

True Environment, Resources and Development Court Kookaburra

courts are the great levellers. In our courts, all men are created equal. I’m no idealist to believe firmly in the integrity of our courts and of our jury system. That’s not ideal to me. That is a living, working reality! Now I am confident that you gentlemen will review, without passion, the evidence that you have heard, come to a decision and restore this man to his family.”

7 Philadelphia (1993) “Do you love the law?” “Because every once in awhile... not often... you get to do justice.”

8

The People v. Larry Flynt (1996) “You don’t want to quit me, I’m your dream client. I’m the most fun, I’m rich, and I’m always in trouble.”

9 A Few Good Men (1992) “I want the truth.” “You can’t handle the truth.” 10 Clueless (1995) “Daddy’s a litigator. Those are the scariest kinds of

lawyers. He’s so good he gets paid five hundred dollars an hour just to fight with people, but he fights with me for free ’cause I’m his daughter.”

Mona Lisa.

28

29


obiter

30

obiter

the

#USALSA TO GET YOUR PHOTOS PUBLISHED HERE NEXT EDITION!

USUAL.. SUSPECTS

USUAL.. SUSPECTS

the

31


obiter

the

is the only student magazine for law students at UniSA.

While created by a core group of creative students, we can’t do it all...

that’s why we need your help. to ensure it really is a magazine for all law students. If you have ideas for columns, or want to submit a story yourself, we want to hear from you... We want your contributions to this magazine

know of an issue that needs addressing,

get in touch with our friendly team...normally creating a ruckus in the library or ‘studying’ at the pub

orpublications@usalsa.org drop us an email at a USALSA publication © 2016

32

The Obiter Issue 16  

The Obiter magazine is UniSA’s law student run magazine published each trimester. It is a great way to keep people informed about what is ha...

The Obiter Issue 16  

The Obiter magazine is UniSA’s law student run magazine published each trimester. It is a great way to keep people informed about what is ha...

Advertisement