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A MORAL COMPASS: ETHICS AND THE LAW Issue 01 2013 UTS Law Students’ Society Quarterly Academic Journal 12

Abortion for the price of a sandwich? Why the frustration remains in the abortion debate 18

Silence in the House of God: How has the Vatican been able to sweep clerical sex abuse under its gold trimmings? 20

Lawyers on the silver screen Once morally upstanding, now morally bankrupt – is this a reflection of true life? 25

Trial by social media

Why we are innocent until the Internet proves us guilty 36

Q&A

Barriers to Justice at the Pro Bono Conference 2013 38

Debate

Should ‘sexting’ be considered pornography?


CREDITS

tfb 2013 [Issue 01]

the full bench

Editors Michelle Smerdon (LSS Publications Director) Lauren Fitzpatrick Joanna Mooney Francesca Elias Arciuli

Designer Hamish Burrell © UTS Law Students’ Society This publication is copyright. Except where permitted under the Copyright Act, no part of this publication may form or by any means (electronic or otherwise) be reproduced, stored in a retrieval system or transmitted by any process without specific written consent of the UTS Law Students’ Society. Enquiries are to be addressed to the publishers. Disclaimer All expressions of opinion published in the TFB are not the official opinion of the UTS Law Students’ Society unless expressly stated. The UTS Law Students’ Society accepts no responsibility for the accuracy of any opinions or information contained herein and readers should rely on their own enquiries to make decisions in their own interest. .

Cover Artist Martin Fisch

LSS Vice President (Education) Kate Taylor

With Thanks To Daniel Mckenzie and co. Kwik Kopy Printing centre Neutral Bay 121 Military Road, (cnr. Bydown Street), Neutral Bay, NSW 2089 Tel 02 9953 3077 Fax 9953 0530 www.neutralbay.kwikkopy.com.au

The Full Bench (tfb) is published in Sydney annually by: UTS Law Students’ Society PO Box 123, Broadway NSW, 2007 Room cM5A.01.08, city Markets campus, Cnr of Quay Street & Ultimo Road Ph (02) 9514 3448 Fax (02) 9514 3427 www.utslss.com

The Full Bench


Contents

Contents

04 04 06 08 09 10

Editorial

22

President and Vice President (Education) Address

25 28 31

Sharin Ahmed

Trial by social media: a modern day issue

How much are your genes worth? Wrongful life

A step in the wrong direction?

Deena Palethorpe

In 10 words or less

33

How many victims were there in Steubenville?

Intellectual disability and the law Alireza Darabi

The Criminal Cure?

35

The abortion debate in Australia

An abortion for the price of a sandwich

36

Should we all be good Samaritans?

38

Anita Juric

Kristen Troy

International Women’s Day Breakfast

Alexia Attwood

Q&A: Barriers to Justice

National Access to Justice and Pro Bono Conference 2013

Debate:

Should sexting be considered pornography?

William Leak and Jessica Xu

Silence in the House of God Sexual abuse and the Church

Review:

Luton White

The duty to rescue: a moral conundrum

20

Innocent until the Internet proves you guilty

Natasha Krnjiac

Obiter

Yvonne Nehme

18

Jasmine Marosovary

The law and ethics surrounding gene patenting

Should we subsidise the abortion pill?

15

A Meaty Issue

Carla Sheiban

Editors’ Question

Alison Whittaker

12

Religious animal slaughter

39

Verbatim:

Law School Overheard

Changing perceptions in pop culture Lawyers on the silver screen

Jamesina McLeod The Full Bench


EDITORIAL AND UTS LSS WELCOME

Editorial

2

013 is the year of an Australian federal election, it’s the year that China will land an unmanned probe on the moon, and it’s the year after the year of the end of the world. But more than anything (and dare we say, more importantly),

2013 is the year The Full Bench becomes bigger, bolder, and better than ever. This year, The Full Bench will increase the quality and quantity of our contributions, and we are set to explore even more hard-hitting, insightful topics. This year you can expect more Q & As with legal professionals, you can read the opinion of your fellow classmates on topical areas of law, and you can laugh along with Verbatim. As the only legal academic publication at UTS, we really want The Full Bench to reflect the lifestyles and interests of UTS law students generally. We’ll build upon an excellent year in 2012 to bring you articles of interest that will help you learn more about the law, and explore different legal topics outside your lecture halls. Famous writer, Samuel Johnson, once said, “The greatest part of a writer’s time is spent reading in order to write. A man will turn over half a library to make a book.” This saying could be no truer than when applied to writing a reflective legal piece. For edition one, our writers were set the task of contemplating different areas of law with their core moral beliefs in mind. What arose from this is a plethora of hard-hitting, sometimes controversial, all awe-inspiring, and eyeopening articles. You’ll follow Alison Whittaker as she speaks about how pro-choice arguments fall on deaf ears in the abortion debate, Kristen Troy as she explores the rarity with which justice is done, and seen to be done, for victims of clerical sexual abuse, and you’ll wonder if pop-culture truly does hold a mirror up to life as you read Jamesina McLeod’s article on the representation of lawyers through pop-culture – once viewed as morally upstanding and respected citizens,

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but now seen to be driven by money and morally bankrupt – among many more amazing articles that will force you to question your morals, your perspective, and your legal mindset.

Happy reading!

The Full Bench editorial team Michelle Smerdon, Lauren Fitzpatrick, Joanna Mooney & Francesca Elias Arciuli

From the LSS President Over this coming year, all four editions of TFB will

Dear Students, first

open your mind, expose you to a vast range of legal

edition of The Full Bench

issues and make you question the way you view the

(TFB) for 2013.

justice system.

Welcome

to

the

This year the fabulous

Throughout my four years as a law student, TFB

have

has provided me with with an opportunity to become

composed the first edition

more acquainted with issues that surround my everyday

to focus on morality and the law. Some of the controversial

lifestyle, and the different legal articles have enhanced

legal issues that are discussed include legalizing voluntary

my law school learning experience.

editors

of

TFB

euthanasia, the role an intellectual disability defence may

It has become clear to me that opportunities to

have in the law and the detriment of an outright ban on gene

explore the law do not need to be restricted to the

patenting.

classroom, but can be achieved through attending

The Full Bench


UTS LSS WELCOME

These seminars and publications branch out from traditional learning

Thank you to... The Editors:

and allow us to explore or write about areas of law where personal views

Michelle Smerdon;

may conflict with the legislature or different customs may be embraced

Lauren Fitzpatrick;

or rejected – all whilst reading about laws unheard or unthought of.

Francesca Elias Arciuli; and

Joanna Mooney.

seminars and reading the publications showcased by UTS and the LSS.

This year, TFB will be an avenue for you to expand your own views on the legal issues that are topical and directly affect society today. The editors have shown they really want your involvement, and the new segment ‘in 10 words or less’ is a great way for you to contribute your own thoughts on an important newsworthy legal issue - without impeding too much of your study time! I would like to extend a special thank you to the following people – whom without their tireless efforts, the launch of the first UTS LSS’ TFB for 2013 would not have been possible: A big thank you to Michelle Smerdon, the Publications Director, for the phenomenal publication produced and to Kate Taylor, Vice President (Education), for her stellar organisational skills and guidance throughout

The Contributors: Thank you all for providing an insight into the controversial legal issues that surround society.

Our Sponsors for their continued support and commitment to the UTS LSS: •

College of Law;

Clayton Utz;

Corrs Chambers Westgarth; and

Gilbert & Tobin.

the editorial process. The extensive level of work that has been put into

Kind regards

this journal by both Michelle and Kate is spectacular.

Katherine Agapitos LSS President

From the Vice President (Education) As law students, we become so used to learning rules of law and applying them to facts in a formulaic and sterile manner. The acronym is IRAC, there is no E for ethical issues or H for humanitarian perspectives. Prominent academic and Indigenous community member, Virginia Marshall, recently reminded us at the first Speaker Series of 2013 that our Western system of law is an arbitrary construct; a series of decisions and choices made by human beings. In my view, we often forget to

enthusiasm and ability are all equally overwhelming. In addition, I would like to thank the contributors to this

consider how these choices impact upon the world around us. This edition of The Full Bench is about those choices, about areas

edition for both your thoughtful pieces, and to adding to

of law where legalities intersect with ethics, where differing personal

the argument on such important issues.

experiences create a dichotomy of moralities. As you read through this

Best wishes

edition, I implore you to consider both sides of the argument through

Kate Taylor

the lenses of both policy and humanity, and to make your own choice,

LSS Vice President (Education)

because as future law graduates there is no one in a better position to bring about change where it is needed. I would like to congratulate The Full Bench team, Michelle, Lauren, Francesca and Joanna, on an absolutely phenomenal start to the year – their commitment,

f

To stay up to date with The Full Bench news, remember to like us on Facebook:

https://www.facebook.com/utsthefullbench2012 and if you’re interested in contributing or want to give us some feedback, be sure to email publications@utslss.com.

The Full Bench

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EDITORS’ QUESTION

Editors’ Question Should voluntary euthanasia be legalized in NSW?

Michelle says: “If

unbearable

of the ‘killer’ in this situation? What are the implications for indignities

arrive before legislation endorsing

Euthanasia implies a distinction between omission

voluntary euthanasia, I imagine I’ll

and commission, between allowing death and killing.

have no choice but to take my end

The movement from honouring an apparent ‘right to die’

into my own hands…” These words

to finding someone’s ‘right to kill’ makes the concept

echo hauntingly from a submission

undeniably a social one.

to the NSW hearings on the Rights

If it is to be agreed to allow anyone who would like to

of the Terminally Ill Bill. This woman

die to make such a decision, then the question becomes

suffers from multiple sclerosis, recounting her own father’s death from the disease at 50 after they amputated both his

what level of suffering is enough? A person’s opinion on whether their life is no longer worth living is equally influenced by physical pain and

legs.

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society?

While no government wants to put their name on an Act

their own beliefs and values. It is apparent that there can

that authorises individuals with a right to die, it is clear that in

be no objective level of when euthanasia is appropriate,

exceptional circumstances the right to die should be a right

and therefore to legalise the practice would subject a

upheld. This right obviously must come with conditions that

practitioner’s or other third party’s own moral compass to

must be satisfied to ensure only the individuals who have the

the constant scrutiny of society’s construction of right and

highest level of suffering are allowed to proceed.

wrong.

I detest our current laws that mean if a loved one assists a

Joanna says:

suffering individual to die, they could be tried for manslaughter

Thoughts about euthanasia

or murder. “There could not be a more stark example of how

rarely crossed my mind until I

unjust and senseless the law is in this area,” Greens MP, Cate

saw firsthand what happens in a

Faehrmann says. However, state parliaments have refused four

hospital when someone refuses

attempts to legalise euthanasia in recent years. In my opinion,

treatment and is ready to die, my

making the change is not a reflection of inhumanity; it’s a

mind questioning: “where does

reflection of care, appreciation and love for those suffering the

the distinction between keeping

most.

the patient ‘comfortable’ and the positive act of medically assisted suicide lie?”

Kate says: Euthanasia is always trumpeted as

a

private

determination

matter –

an

of

self-

individual

choice to end unbearable suffering. And while I support the overriding concept after personally witnessing someone endure a painful, terminal illness, my question is what becomes

In the eyes of the law, keeping a person comfortable while they die is markedly different to assisting. Yet, this distinction becomes unclear when faced with a person who would not be able to stand the pain of death were it not for the comfort of modern medicine. In this regard, I disagree with Kate - is providing support and medication not providing ‘assistance’? This distinction between omission and commission when it comes to euthanasia is, I believe,

The Full Bench


EDITORS’ QUESTION

simply created out of convenience to avoid dealing with a

Francesca says:

difficult reality.

The

debate

surrounding

Even where the legislation is clear, there are many

voluntary euthanasia is heating

hurdles to overcome, as is the case in the nine-step process

up in Parliament. With the Ending

outlined in the legislation proposed in Tasmania. It is not

Life with Dignity Bill 2013 having

about giving people an easy out, but about giving people

been proposed in SA and NSW

a choice. It may not be one that any of us would ever want

MP Cate Faehrmann championing

to make, but one that each of us should have the right to

a right to die Bill, those who are

make.

terminally ill may possibly attain

Lauren says:

assistance for euthanasia procedures in the future. I do not think it is our place to judge individuals who support

The right of a competent

these Bills until we are in the position of the individual suffering.

person to make decisions

Perhaps the issue is that few current options allow one to

that affect his or her own

die with dignity. Palliative care and hospices are seen as places

life is seen as fundamental

to die, rather than a positive place to reach the end of life with

in a democracy such as

dignity and compassion. The 2013 Senior Australian of the

Australia. As pointed out by

Year, Professor Ian Maddocks, said ‘we are not dying well,’ and

professors Ben White and

I agree with him. We need to put more resources into finding

Lindy Willmot, this “right of

better treatments that improve the quality of life for patients

self-determination” should entitle a competent person

upon death.

to choose the manner in which he or she dies. “This right

I would like the option to die with dignity. While voluntary

includes the right to ask for someone else to end his or her

euthanasia should be a choice, it should be a last resort. Instead

life, or to receive assistance to die.”

we need to create other options that afford dignity in death so

The person, in voluntarily making their decision, must

that people do not feel that they only have one choice.

be either terminally ill, or in unendurable pain and suffering. I agree with Michelle that legalising the right must come with conditions that need to be satisfied. It’s essential that voluntary euthanasia be regulated, controlled, and clinically supervised by health professionals. And while it must be ensured that these professionals euthanise in the right circumstances, this is impossible to monitor, and as Kate pointed out, highly subjective. But so is every law. There are always going to be people who slip through the cracks of legislation, just as there are currently individuals travelling overseas to jurisdictions such as the Netherlands, where voluntary euthanasia is legal. But this is a risk Australia should be willing to take. And according to a 2010 survey by the Australian Institute, 75% of the Australian population agrees with me.

The Full Bench

7


OBITER

Obiter

By Sharin Ahmed

“To Kill a Mockingbird made many of us want to become lawyers in the first place—it had that effect on me. Films like Inherit the Wind, Philadelphia and In the Name of the Father show lawyers at their very best, standing up for clients who are despised.”


40-50 million women each year will have an abortion. That equates to 125,000 abortions per day. - World Health Organisation

- Michael Asimow, author of Reel Justice: The Courtroom Goes to the Movies

$1 million

“No woman can call herself free until she can choose consciously whether she will or will not be a mother.”

in government funding would pay for only 60 Federal

- Margaret Sanger, American birth control activist

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“To all our Facebook followers…we ask you to refrain from posting anything on social media which could jeopardise or endanger the presumption of innocence.” - The Victoria Police Facebook page, posted due to concerns over trial by media in the Jill Meagher case

“If I were a dictator, religion and state would be separate. I swear by my religion. I will die for it. But it is my personal affair. The state has nothing to do with it.” - Mahatma Gandhi

“Lawyers see the public’s needs, its desires, its strengths, and, yes, its vulnerabilities. And for that, certain sectors of the public become resentful, conjuring thoughts that perhaps some sinister conspiracy is afoot.”

Court cases compared with 60,000 legal information services. - NSW Attorney-General’s Department, 2009

Over 60% of large law firm pro bono work is for organisations rather than individuals. - Final Report on the National Law Firm Pro Bono Survey 2012

490,000 Australians each year who are in need will not be granted legal aid, or will not know to seek it. - The Australia Institute

More than 80% of Australians polled say they support the legalisation of voluntary euthanasia. - Sydney Morning Herald online poll

- Robert A Clifford, Partner at Clifford Law Offices

The Full Bench


IN 10 WORDS OR LESS

In 10 words or less How many victims were there in Steubenville?

We thought we’d ask our readers what they thought of this controversial case in

The rape that shocked the world – what happened in Steubenville?

ten words or less. Here’s what they had to say:

In the early hours of the morning on 12 August 2012 the people of

“Harsher penalties are needed to teach them it’s not ok.”

the town of Steubenville, Ohio, lay sleeping, blind to the harrowing

Bianca Xerri

and traumatic events occurring in their very neighbourhood. The next morning, the town awoke to be rocked by the news that one of their own had been raped. The victim, a high school girl, was reported to be publicly and

“There was only one victim at Steubenville.”

Clementine Ford (quoted by Ruby Munsie)

“Unfortunately

we

can’t

repeatedly sexually violated by peers, some of whom had the

bystanders or community.”

audacity to document the event on phones and disperse images

trial

the

football

coach,

Katherine Rickard

of torment like gossip through social media outlets, while she was “It sums up everything that is wrong with rape culture.”

unconscious or debilitated by alcohol. Two male students, deemed to be “star football players”, both 16 at the time, were convicted of the girl’s rape. The incident fuelled provocative debate and galvanised a national conversation about rape culture. While CNN controversially

Daniella Lambert

“Condemnation of the tasteless television coverage promotes media accountability.”

Ryan Diefenbach

declared that the tragedy of the incident was the fate of “the two young men that had such promising futures,” disbelieving

“Product of their environment: Steubenville town attitudes

Clementine Ford of The Daily Mail declared there was only one

require educating first.”

victim in Steubenville. “They are labelled as registered sex offenders because they ARE sex offenders…it’s about two boys who participated in the

Hannah Rumble

“Too lenient a punishment for such a cruel crime.”

Cindy Lam

dehumanisation of a vulnerable girl…so forgive my paddock language, but CNN and its concerned commentators can cry me a

“Does public shaming work or does it perpetuate rape

fu*king river,” she said.

culture?”

Did you enjoy this segment and want to contribute to our next ‘In 10 words or

Aloysius Robinson

“Courts should determine punishments that rehabilitate young offenders.”

Sage Nemra

less’? Email publications@utslss.com for our next conversation topic.

“This begs the question - fair trial or trial by media?”

“The ONLY thing ‘drunk’ and ‘deserved’ share is ‘d’.

“Root cause seems to be overlooked - excessive underage

Terrible.”

teen drinking!!”

Jamesina McLeod

Nesha Jeyalingam

Kismet Bagga

“Exchanging immunity for testimony is wrong. Charge the

“The arc of the moral universe bends towards justice.”

video-makers too!”

DeLillo)

Ashleigh Barnes

Dr. Martin Luther King, Jr (quoted by Haran

The Full Bench

9


THE ABORTION DEBATE

The Criminal Cure? The Abortion Debate In Australia

Behind bars in the abortion debate “Whosoever, being a woman with child unlawfully administers to herself any drug or noxious thing, or unlawfully uses any instrument or other means, with intent in any such case to procure her

What many people don’t know is that abortion is a criminal action, attracting a severe 10-year prison sentence. Alison Whittaker speaks about the futility of the criminal cure and how the rights of disadvantaged women are falling upon deaf ears in the abortion debate.

miscarriage, shall be liable to imprisonment for ten years.” 1 What is often unspoken and widely unknown is that abortion remains a criminal act under ss 82 and 83 of the Crimes Act 1900 (NSW). While s 82 dictates that a woman herself must not procure an abortion, s 83 goes further and dictates that no one can procure an abortion for another. This bizarrely contravenes the pragmatic access-ondemand approach many of us expect and see enacted from day to day. I know many women who have sought and had abortions and have not had police knock on their door. In fact, in 2010, 25,953 abortions were undertaken in NSW and the ACT.2

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So, why, you may ask, is abortion so often carried out with no legal or criminal ramifications? If this is what the legislation prescribes, why are these women not serving ten years behind bars? The answer is contained in the surprisingly progressive judgement of R v Wald,3 which dictates that abortion is permitted where it is deemed to be ‘necessary’. Necessity is defined to be, “to “Cramps are getting a bit more persistent… “Definitely bleeding now.” Angie Jackson live-tweeted her medical abortion over two years ago, but her words still echo in the abortion debate. For a small window at the turn of the decade, the mood had lifted for pro-choice activists and women seeking abortions worldwide. However, Jackson’s attempts to demystify the experience of terminating a pregnancy came up against cries from anti-choice groups, and those anti-choice groups’ cries were louder. Now, few remember Angie Jackson’s name, and few more remember the furore of the live-tweeted abortion. The optimism of an open conversation has long gone, but the frustration remains.

preserve the woman involved from serious danger to her life or physical or mental health which the continuance of pregnancy would entail.”4 It appears on the surface that it may be difficult for a woman to prove it is in fact necessary for her to have an abortion, but common law alleviates this issue by deeming that mental health includes, “the effects of economic or social stress that may pertain either during pregnancy or after birth”.5 With this in mind, abortion clinics have allowed women to easily jump this supposed criminal hurdle. Abortion clinics are known to merely ask a patient why the abortion is needed, and they will accept an answer roughly framed around health or socio-economic justifications. In law, it is broad. In practice, it is broader.

The Full Bench


THE ABORTION DEBATE

But nothing about an abortion is

a reasonable and established standard like

not equipped to engage with fully and

easy

that of Superclinics, this it is yet to be tested

maybe she will change her mind about

in a courtroom. Moreover, there is little

terminating her pregnancy. Stave off

in the way of legal recourse for a doctor’s

the don’t-want-to-be-pregnants and

misinterpretation in the first instance, and

cork the flow of the ‘abortion epidemic’,

little public interest or support for a criminal

lest abortions be as commonplace as

action against abortion in NSW.

getting a manicure.

The

courts

‘necessity’

but

may

widely

that

does

interpret not

solve

problems in a practical sense for women in disadvantage. A woman could book herself an appointment with a GP who will widely scope the necessity for her abortion and refer her, or provide it, based on an honest assessment of the considerations. Will it make you depressed? Yes. Will it cause you undue financial stress? Yes. Will it affect your health? Yes. For many women this is the simple truth and as such abortions, despite

“The optimism of an open conversation has long gone, but the frustration remains.” So, what are the other options?

It is a bizarre and cruel avenue to use criminal law as an active means of disincentive to abortion, and frankly it doesn’t work. It does not work for a very simple reason: abortions are terrifying. Abortion is its own disincentive. It is painful, expensive and carries surgical and medical risks. It is also the scandalous medical secret many

Does the woman go to another doctor

women are burdened with. Clearly,

in lieu of a legal avenue? Perhaps, but only

even these dramatic disincentives do

However, this access is not for all. In a

if she has that luxury. But what if she lives

not alleviate the need for, or indicate

2004 survey, 75% of GPs held a belief that

in a regional town? What if she has low

any real benefit to, the heavy limitation

doctors have a moral obligation to disclose

income? Will she order the abortion drug

of abortions in NSW.

their opinion on abortion before providing

online without consultation, potentially

Asking women to invent physical

a necessity assessment for an abortion

risking her life? Or will she consult a

or mental health or social or financial

candidate.6 This is not your doctor’s legal

backyard abortionist, potentially risking her

justifications

obligation. Thus, a hypothetical woman

life? With what appears to be a cold legal

component under common law is

may, as many women will, be unlucky.

endorsement from ss 82 and 83 and a self-

also

congratulatory complacent silence from

Furthermore, it rejects the idea that

the judiciary, these may be her only options

medical rights to one’s own body ought

honestly based on the Wald criteria is highly

– as long as she doesn’t tell anyone.

be prima facie exercised, not because

subjective for a doctor who, like all persons,

A criminal cure to stave off

there will be damage to the person

makes

abortions is widely misguided

without intervention but, because it is a

criminalisation, are relatively accessible via the blessing of Wald.

Whilst necessity is a loose test, the requirement

that

medical

the

assessment

assessments

be

through

an ideological lens. Our hypothetical woman’s GP may refuse a woman’s request, interpreting their assessment of necessity in a narrow extreme in accordance with their views.

While the common law has provided an avenue for safe and legal abortions in NSW, it is unreliable and insufficient. Yet, it is also all we can cling to when the debate surrounding abortion limits the

Will this pregnancy kill you? No.

capacity of the legislature, who so often

Then your abortion is unnecessary and I will

engage with this topic in sensationalist

not refer you or perform the procedure.

and fundamentalist terms, spurred on by

Is this subjective view right in the eyes of the law? Yes and no. The current

pockets of the public. These laws come under the assumption

to

patronising

fulfil and

a

necessity

paternalistic.

self-evident truth and prerogative. It also undermines the gravity of a decision a woman makes on her own terms: where the prospect of a major invasive surgical operation in which material is manually removed from the body, or a pill that induces bleeding and miscarriage for almost a week is preferable to carrying the pregnancy to term.

Looking to the future

doctor’s

carried by many in the regulation of

assessment be only honest. Though there

reproductive procedures and women’s

Decriminalisation has been a major

is a growing body of evidence indicating

health; make women negotiate enough

pro-choice push for some time. This

that the next step in abortion common law

twists and turns and mountains of protocol

would most likely mean the removal of

is whether this assessment must also be to

and piles of legal jargon a lay woman is

the abortion provisions.7

requirement

holds

that

the

The Full Bench

11


THE ABORTION DEBATE

Photo: Micagoto

This would, in my opinion, be necessary, but insufficient. Women need access to abortion. Women must be able to reach their clinics without lengthy travel. Women must be able to have their procedures subsidised, and have access to regular and appropriate medical support during a pill abortion. Women must have access to anonymity and home consultation where appropriate. The removal of legal disincentive is insufficient; lawmakers and the Executive must take determined, small strides towards removing social and economic disincentives. It is well within the State Government’s ambit to provide for the reproductive health of its citizens, particularly when there is a clear statistical demand for abortion procedures. It is unfitting that charities must provide abortion services in a country of such wealth, when there is greater need for reproductive health agencies where wealth is not as

1. 2. 3. 4. 5. 6. 7.

s 82 Crimes Act 1900 (NSW). Medicare Australia, ‘Medicare Item 35643 processed from July 2010 to June 2011’ (2013) 2010/2011(1) Medicare Item Reports. [1971] 3 DCR (NSW) 25. R v Wald [1971] 3 DCR (NSW) 25. CES v Superclinics Australia Pty Ltd (1995), 38 NSWLR 47. Marie Stopes International Australia, ‘GPs’ Attitudes to Abortion’ (2004) 1(1) Marie Stopes International Research. Ss 82 and 83 Crimes Act 1900 (NSW).

abundant or as well-distributed. If we are seen to endorse unwanted pregnancy as a socially, economically and legally criminal condition, disadvantaged women will inevitably bleed.

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An abortion for the price of sandwich By Yvonne Nehme

T

he Federal Government has recently considered

subsidising the drugs needed to complete the abortion

process: Mifepristone Linepharma (RU486) and GyMiso. This controversial move that would result in the drugs being listed

Photo: Heather M

on the Pharmaceuticals Benefit Scheme could see taxpayers funding abortions. As a result, the cost of the abortion drugs could plummet from around $300 to as little as $5.90.1 To put this into perspective, a woman could have an abortion for a price less than four coffees, less than a day of street parking, less than a DVD, and less than a sandwich. In fact, a woman could have an abortion for a price less than the

broadening the scope for women to undergo the procedure

morning after pill.

virtually without the threat of legal implications.

Currently, in NSW, the right to terminate a foetus is

Will access to abortion be too easy?

constrained by the Crimes Act 1900 (NSW) (‘the Act’)

The subsidisation of the abortion drugs by the Federal

where performed ‘unlawfully’. However, as Alison Whittaker

Government is likely to result in an increase in accessibility of the

explained, the definition was expanded in R v Wald,2

drugs, particularly to women facing economic pressures.

The Full Bench


However, while this may be viewed as a positive, there is also concern that accessibility could operate hand in hand with wider use where not necessarily lawful. Currently, the abortion drug is not widely used in NSW. “It is estimated there are about 70,000 abortions in Australia annually. Fewer than one in 20 of those abortions use RU486,” The Australian said.3 It is likely that the subsidisation of the abortion drugs will inevitably increase this figure, resulting in fuelling the moral abortion debate. One issue of particular concern is whether the ease of accessibility and administration of the abortion drugs will result in women becoming misguided as to the gravity of their decision, particularly for those women who may not necessarily be equipped to deal with such a decision. For example, a woman under 16 years of age has the ability to consent to an abortion without her parent

“...only the woman and doctor have the authority to decide on an abortion and can disregard the man’s wishes completely.”

or guardian’s knowledge, and women with intellectual disabilities have the same rights as any young women if they are deemed able to give informed consent. While it is appropriate that their rights in respect to their health and body are being recognised, subsidising the drug will only make it more attractive to these groups of individuals. What is potentially more concerning is that this introduction may lead to further ease of access. For example, in France the abortion drug RU486 is available over the chemist counter.4 Obviously, a line must be drawn between ease of access and access becoming too easy and too tempting.

What about dad? Under the Children and Young Persons (Care and Protection) Act 1998 (NSW) parental rights only arise at birth, affirming that only the woman (if able to make an informed consent) and doctor have the authority to decide on an abortion and can disregard the man’s wishes completely. Therefore, as women will most definitely be able to have increased accessibility to abortion drugs if subsidised, this increased accessibility may come at a cost to men who may be willing to offer full monetary and emotional support in raising the child. Whilst

subsidising

abortion

drugs

increases

its

accessibility, it ultimately comes at a cost. The extent of this cost possesses the potential to be regarded as substantial. 1.

Linda Silmalis, ‘Push for abortion drugs to cost less than $12’ The Australian 31 January 2013. 2. R v Wald (1971) 3 DCR(NSW) 25. 3. Above n 1. 4. Ibid.

The Full Bench

13


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THE DUTY TO RESCUE

Photo - Cristian Bernal

Should we all be Good Samaritans? The duty to rescue: a moral conundrum Is it ok to walk by someone dying on the street? The law says that where there is no pre-existing ‘duty’ it is; yet something seems terribly wrong with this image. Anita Juric explores the practicality, possibility and implications of generalised ‘duty to rescue’ law in Australia.

T

he disparate interplay of morality

legal duty to rescue is restricted to

Nonetheless, the ethical dilemma of a duty

and law attracts controversial

cases involving a special or fiduciary

to rescue in a social framework has arisen

discourse regarding the question of

relationship between the parties such

in numerous cases, in which it appears that

whether there can and should be a legal

as that of employer and employee. 3

heroism is morally and physically rewarded

duty to rescue. Many would assert that

The Australian courts are hesitant

while individuals who are driven by their own

there is surely a moral duty to render

to interpret the existence of a broad

self-interest in refusing to rescue others are

4

assistance to others in need and there

duty to rescue among society and

ought to be a corresponding legal duty.

the legislature is equally reluctant

In one case, a Melbournian 16-year-old,

Yet the law establishes a different view.

to enact laws governing such a

Sam Porter, heroically saved the life of a

The current legal position

duty. This has largely stemmed from

young man who intentionally jumped onto

policy

considerations,

the train tracks after he was beaten and

by

distinction

Imagine a situation in which a medical practitioner is informed that

the

5

informed

between

denigrated.

acts

robbed by a third party. Porter’s courageous

an 11-year-old boy is suffering from

and omissions,

and the arguably

action sparked nationwide attention and

prolonged epileptic seizures a mere

impractical nature of extending the

the media was fast to dub him ‘Super Sam.’

300 metres away. Dismissively, the

scope of the legal duty to rescue.

He was rewarded with a Pride of Australia

practitioner refuses a request to attend

However, the absence of a duty

to the child. The practitioner’s inaction

to rescue is ethically problematic as

“Sam Porter may be the closest thing

leads the child to suffer permanent

it represents a dispassionate fissure

Melbourne has to a superhero,” The Herald

brain damage and quadriplegia.

of morality and law that enables

Sun stated. 8

Outstanding Bravery Award.

individuals to refuse to assist those

On the contrary, and in a case where praise

the case of Woods v Lowns, the

in imperilled situations. In addition, a

of valour was hard to find, Mark Inglis refused

principle judgment contributing to

pervading social fear exists whereby

to assist a man who was in a fatal condition

the development of the law of rescue

individuals are cautious and unwilling

when climbing Mount Everest. Interestingly,

in Australia. The case held that in those

to help others due to concerns of

Inglis himself had been previously rescued in

circumstances, the medical practitioner

potential litigation.

a similar incident.

This was the tragic reality in 1

was negligent for failing to render

In order to counteract these issues,

Inglis was strongly of the view that a duty

assistance to the child. However, had

Parliament has enforced legislation in

to rescue was not a moral or legal duty that

the circumstances been different and

respect to ‘Good Samaritans’, which

should be upheld, and even went to the extent

a distinctive relationship between the

operates to exclude personal civil

of acknowledging that his own rescuers were

parties had not been established, a

liability for those who righteously

under no obligation to help him, and should

duty to rescue would not have been

aid individuals in dire circumstances

have placed their lives above his own.

found.

using reasonable care and skill.6 This

“You should never, when you have

At common law, no general legal

is further supported by the ability

conscious thought, lose your life to save

requirement exists in civil or criminal

to recover damages on behalf of an

someone else’s,” he said. 9

law to assist others in danger.2 A

injured rescuer.7

In light of these stories, the question then

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15


THE DUTY TO RESCUE becomes: is the concept of a legal duty to

to attribute immense responsibility to one

than imposing criminal sanctions, and this

rescue too idealistic?

specific person, especially if the incident

is a potential area for development.21 From

Is it practical to implement a legal duty to rescue?

occurred in a social setting with many

a holistic perspective, it seems that future

potential rescuers around.

developments, if any, will be premised

This question remains pivotal in

However, scholars also argue that it is

examining the viability of a general

judicially feasible to impose a legal duty for

reasonableness in all circumstances.

rescue law. For numerous legal and social

an easy rescue. This would involve a duty

By virtue of the moral theory and legal

reasons the prevailing realism on this

arising on behalf of one party who, without

principles examined, it is reasonable to infer

matter implies that there are limitations

risking their own safety, could abate

that there needs to be a stronger correlation

in imposing such a widespread duty.

the dangerous situation experienced by

between ethics and the law. Philosophical

Firstly, an expansive rescue law poses

another.

According to this argument, a

perspective affirms that a moral duty to rescue

administrative issues in tort law relating

duty of easy rescue is ethically reasonable

exists yet the question of whether there can be

to duty of care and causation. This relates

and would fortify existing common law

a legal duty remains unresolved.

15

to the traditional common law approach

principles based on liberty.

regarding acts and omissions, where legal

What does philosophy propose?

us that we can identify the instances in which

sanctions are employed as preventative

In natural law theory, morality is derived

we will be expected to rescue, and in which

measures to avoid harmful conduct

from nature and discoverable by human

circumstances we should place our lives over

16

At present, it appears more important for

rather than to command virtuous acts.

reason.

Philosophers pertaining to this

those of others. Currently, in the absence of

Inaction in the context of tortious rescue

theory advocate a normative conception

an exceptional relationship that stipulates a

17

law is practically problematic; as to be

of what law should be, and suggest that

mandatory duty to rescue, the broad scope

considered a negligent omission it needs

moral validity amounts to legal legitimacy.18

of a duty to rescue is a grey area in which our

10

Idealistic foundations resonate in Plato’s

moral compass dictates our individual actions,

Lord

view of justice, suggesting that elevated

for better or for worse.

Atkin expressed the ‘neighbour principle’

moral standards contribute to judicious

to adduce the existence of a duty of

legal outcomes,19 in addition to Aquinas’

care, “[y]ou must take reasonable care

philosophy, depicting the centrality of

to avoid acts or omissions which you

Christian ideals and ecclesiastical authority.20

can reasonably foresee would be likely

From this perspective, the answer is yes,

to injure your neighbour”.12 It seems

there is a moral duty to rescue and it should

irrational to extend a duty of care to

be cemented in our legal system, as saving

incorporate all members of society, as

another person’s life is an innate moral

one could not reasonably foresee that

obligation that should be collectively

their failure to rescue would necessitate

embraced.

to satisfy components of negligence. In Donoghue v Stevenson,

16

14

on the safety of the rescuer and objective

13

11

harm of a particular kind. It is also unjust

Looking ahead: future developments

“The absence of a duty to rescue is ethically problematic as it represents a dispassionate fissure of morality and law that enables individuals to refuse to assist those in imperilled situations.”

In recent times, due to the stagnant progression of rescue law, the prospect for future developments seems

questionable.

Overall, critics argue that the legislature needs to incorporate easy rescues in tort law. Alternatively, it

has

been

proposed

that enforcing a duty to rescue in the area of civil liabilities is less responsive

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1.

(1995) 36 NSWLR 344. See also the appeal decision of Lowns v Woods (1996) Aust Torts Reports 81-376, where the duty to rescue was upheld regardless of the lack of a prior doctor-patient relationship. 2. See, for example, Sutherland Council v Heyman (1985) 157 CLR 424 at 468. 3. See, for example, Home Office v Dorset Yacht Co Ltd [1970] AC 1004. 4. This is the case for all Australian jurisdictions excluding the Northern Territory, where a general duty to rescue is enforceable under the Criminal Code Act 1983 (NT), s 155. 5. See Stovin v Wise [1996] AC 923 at 930, see also Roads and Traffic Authority of New South Wales v Dederer (2007) 238 ALR 761 at 767. 6. Civil Liability Act 2002 (NSW), pt 8. 7. See, for example, Chapman v Hearse (1961) 106 CLR 112. 8. Nathan Mawby, ‘Super Sam saves three lives in two years’, The Herald Sun (online), 15 June 2012 <http:// www.heraldsun.com.au/ipad/super-sam/story-fn6bfkm6-1226395953601>. 9. SBS, ‘Saving Lives’, Insight, 26 February 2013 (Jenny Brockie) <http://www.sbs.com.au/insight/episode/transcript/516/Saving-Lives>. 10. Les Haberfield, ‘Lowns v Woods and the Duty to Rescue’ (1998) 6 Tort Law Review 56, 65. 11. [1932] AC 562. 12. Ibid 599. 13. See, for example, Hill v Chief Constable of West Yorkshire [1989] AC 53. 14. Ernest Weinrib, ‘The Case for a Duty to Rescue’ (1980) 90 Yale Law Journal 227, 250. 15. Ibid 251. 16. Denise Meyerson, Essential Jurisprudence (Routledge-Cavendish, 2006) 36. 17. Margaret Davies, Asking the Law Question (Lawbook Co, 2nd ed, 2002) 84. 18. Meyerson, above n 16, 37. 19. Plato, The Republic cited in Marett Leiboff and Mark Thomas, Legal Theories in Principle (Lawbook Co, 2004) 12. 20. Aquinas, Summa Theologica cited in Leiboff and Thomas, above n 19, 48. 21. Douglas Hodgson, ‘Rescue of persons and property on a comparative common law and civil law context’ (2011) 19 Tort Law Review 125, 129.


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SILENCE IN THE HOUSE OF GOD

Photo- Art - 4thegloryofGod

Silence in the House of God By Kristen Troy “Legislation is needed to protect children from all forms of exploitation and abuse, as in the case of incest and paedophilia…these scourges are an affront and a scandal to humanity. These various forms of violence must not go unpunished.” Holy See statement to the UN Special Conference on Children, 2002, para 23(a).

No soul utters a word as the scene unravels before us:

The documentary resonates hallowing messages of papal

the heart-wrenching crusade of four deaf men who have

fallibility and devastating injustice, and illuminates the depth

borne witness to terrible truths. These men have dedicated

of the victims’ physical, psychological and emotional trauma

several decades of their lives to bring justice to victims of

borne of these grievous instances of abuse of trust and position.

sexual assault who have been molested and manipulated

18

within the confines of a system based on honesty, trust and

Human Rights and the Vatican

vows of celibacy. What is potentially more harrowing is how

A right to religion, and to manifest it within the community by

the situation has been swept under the gold trimmings and

‘teaching, practice, worship and observance,’6 is a universal

allegedly untarnished carpets of the Vatican.

human entitlement, and churches must be free to attest the tenets of their respective faiths.7 This right’s complement,

Mea Maxima Culpa : Silence in the House of God

however, is that religious freedom is exercised subject to the

This heartbreaking and sobering documentary illuminates

freedoms of others, in addition to the operation of laws vital to

the widespread and systematic nature of clerical sex abuse,

ensure effective democracy.8

1

necessary protection of the public interest and the rights and

and specifically, the legal journey of former students of St

What is becoming horrifyingly clear is that religious

John’s School for the Deaf, Terry Kohut, Gary Smith, Arthur

institutions have the ability to effectively hide human rights

Budzinkski and Bob Bolger, whom detail their journey to

abuses behind their claim for religious freedoms.

bring Milwauke Priest, Father Lawrence Murphy, to justice

A predominant issue reinforced by the documentary is the

for molesting and assaulting over 200 deaf school children

difficulty and relative rarity with which justice is done, and seen

under his pastoral care. 2

to be done, for victims of clerical sex abuse.9

Ultimately, a string of pivotal civil lawsuits stemmed from

In a post screening Q&A on 12 March 2013, Geoffrey

the men’s case, which were key in unearthing cascades of

Robertson QC explained to the audience how the Vatican’s

secret documents which detailed the sexual abuse, stowed

statehood and the contrived operation of traditional Canon Law

3

within the Vatican’s private archives.

contributes to this concerning, unsatisfactory and yet persistent

The investigation shockingly revealed how the Pope,

state of affairs, and spoke about the practical realities of holding

mysterious laws, is simultaneously “responsible and helpless in the face of evil” in relation to the atrocities of sexual abuse of minors.4 Prominent church figures are implicated within the documentary as key players involved in silencing the abuse, notably including Cardinal Joseph Ratzinger - his recently retired Holiness, Benedict the Sixteenth - during his time as Prefect of the Sacred Congregation for the Doctrine of the Faith (CDF).5

The Full Bench

Photo- Marcel Germain

bound to operate within the scope of the Roman Curia’s


SILENCE IN THE HOUSE OF GOD

the Church criminally and tortiously accountable for

Convention be compatible in practice with the particular nature of the

the actions of its priests.

Vatican…and of the sources of its objective law…”16

Photo- Lewishamdreamer

The operation of Vatican Canon law as a secretive, exclusive, ineffective and non-punitive jurisdiction dealing with child sex abuse by Catholic priests is irreconcilable17 with fundamental Convention provisions relating to the best interests of the child.18 Robertson suggests that the Pope must relinquish this reservation to demonstrate that the Holy See is serious about its signatory human rights obligations. The reservation currently stands, however, within the midst of a body of priests who were educated for a century to believe that accusations of child sex abuse against them were to be dealt with exclusively under Canon

Rising above the law: the implications of statehood

law.19 Robertson concluded the Q&A by questioning the legal and moral

The Pope and his seat of power, the Holy See,

of a secret spiritual legal system that internationally shields paedophile priests

continue to enjoy a statehood immunity that places

from police investigation and criminal trial.

responsibility of the former Pope for his negligence in his singular utilisation

them above the law, by virtue of the 1929 Lateran

What is apparent is that the documentary sheds light on an area that

Treaty. The Vatican’s extensively debated status as

has been silent for too long. For a moment, the unbearable silence and

a state is effective in limiting its accountability for

impregnability of the church has been disturbed and the horrors revealed. It

these offences in civil, criminal and international

is clear that the ramifications will continue and the circumvention of human

law, and its immunity is “heavily dependent upon

rights will not be ignored, however no one can tell how long it will be until

its demand to be treated as a state with its own

silence covers the Vatican once again.

Canon Law rather than as the headquarters of a religion with no power other than to discipline its priests.”10 Unless a civil action against the Holy See overcomes the immunity hurdle by establishing either that the state is vicariously liable for its agents or by proving supervisory negligence, or alternatively, by demonstrating that the Holy See is not properly characterised as a State at all under the 1933 Montevideo Convention on Rights and Duties of States, no one will ever be accountable for the Church’s human rights abuses due to its enduring non-disclosure of evidentiary CDF documents.11 The

Vatican’s

ostentatious

pretension

to

19 1 Mea Maxima Culpa: Silence in the House of God (directed by Alex Gibney, HBO Documentary Films, 2012). 2 Ibid. 3 Ibid. 4 Ibid. 5 Above, n 1. 6 Article 18, Universal Declaration of Human Rights (1948). 7 Geoffrey Robertson QC, The Case of the Pope (Penguin Group, 2012), [1]. 8 Ibid. 9 R v Sussex Justices, Ex parte McCarthy (1924) 1 KB 256, 259. 10 Above n 8 [12]. 11 Above n 8 [188]. 12 Ibid [2]. 13 Ibid [236]. 14 Holy See, Report to the Committee on the Rights of the Child, 28 March 1994. 15 A reservation is defined by Article 2(d) of the Vienna Convention on the Law of Treaties as a “unilateral statement…made by a state, whereby it purports to exclude or modify the legal effect of certain provisions of the treaties in their application to that state”. Vienna Convention on the Law of Treaties opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 29 January 1980) 16 Above n 8 [162]. 17 Article 19 of the Vienna Convention on the Law of Treaties requires that a reservation “…must not be inconsistent with the object and purpose of the treaty” see above n 16. 18 Article 3(1) Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990). 19 Above n 8 [54].

statehood is inevitably inseparable from the child abuse endemic,12 because the crisis has illuminated the operation of Canon law as a concurrent, parastatal jurisdiction that forgives the sins that host states punish as crimes. 13

Canon Law Jurisdiction Although the Holy See ratified the United Nations Convention on the Rights of the Child (1989), the Vatican’s “renewed expression to its constant concern for the wellbeing of children”14

was

severely undercut by an obscure but significant reservation,15

“that the application of the

The Full Bench


Lawyers on the silver screen

Changing perceptions in pop culture Lawyers on the silver screen Lawyers, once portrayed as champions of justice, are now being depicted as competent yet flawed. Jamesina McLeod explores the changing representation of lawyers in popular culture, and its impact on society.

When I first started my combined degree, the reaction from friends and family was generally supportive. “Learning to make the world a better place,” they would chirp, “Well done!” Sailing along quite happily through my first few weeks of class, my feel-good bubble was unceremoniously burst one day by a sassy barista. “Journalism and law? So you’re learning how to become two different kinds of dickhead, hey?” I’d like to thank that sassy barista, not only

20

for inspiring me to swear off coffee1 and save considerable

Photo- Zbili

small change, but also for neatly highlighting the constantly changing perception of lawyers in society. More so than doctors, architects, police officers, and other societal pillars, lawyers are often held up as the barometer of social malaise or advancement.2 Nowhere is this more evident than the representation of lawyers within popular culture, where the dominant depiction of legal practitioners in film, television, and literature, speaks volumes about their status during a particular political or social context. Visual and visceral, creative forms of mass entertainment

“Today’s screen is far more likely to present a nuanced, flawed, and even despicable individual.”

have made big dollars portraying lawyers’ struggles to answer big questions: What to do when you realise your client is guilty? How do you bring yourself to represent an unpopular client? Are you actually selling out if you’re representing big business, rather than the man on the street? What do I do now that I’ve slept with my client? Any major film or television show of the last century will see its protagonists grappling with at least one of these ethical dilemmas. It is not the age-old questions that prove telling,

literally, given when they were filmed) heroes like Harper Lee’s much beloved Atticus Finch in To Kill a Mockingbird (1962), today’s screen is far more likely to present a nuanced, flawed, and even despicable individual, who may successfully apply the law to others as spectacularly as he or she fails to abide by it themselves. The

drug-snorting,

prostitute-escorting,

all-round

rapscallion defence barrister, Cleaver Greene, of ABC’s popular television series Rake (2010), is a prime example

but the characters’ changing responses over the years. Far from the black and white (both metaphorically and

paralleled countless times before, and since, on the silver

The Full Bench


Lawyers on the silver screen

screen in films like The Devil’s Advocate (1997), which sees Keanu Reeves literally make a pact with the devil to work in a big-city law firm, and The Lincoln Lawyer (2011), where Matthew McConaughey, a barrister holding a defence trial, pays a local gang to “rough up” the client, upon realising he is guilty halfway through. Apart from friends or family, the first encounter many law students have today with the legal profession is from wider culture. How many times have either yourself, or other students, cited Atticus Finch’s thrilling cross-examination, or Elle Woods’ unlikely rise to the Bar, as a key (if not embarrassing) factor in your decision to study law? These characters appeal to the idealists in all of us; they stand for all that is noble in a profession that has, as its core value, the pursuit of justice and the preservation of human dignity (though pursuit of a marriageable male might be more accurate as far as

Photo- Aaron Landry

Legally Blonde (2001) is concerned). They are heroes left over from a golden age where laws eventually made firm the rights of black Americans, or a modern age where females are just as, if not more, likely to qualify as lawyers in what has historically been a male profession.3 But, we are also increasingly captivated by the new incarnation of the sleek, chic lawyer – the smooth-talking, charismatic, and unempathetic Harvey Specters (Suits, 2011) and Billy Flynns (Chicago, 2002), who weasel money and dupe juries

cherished cult classics focus on criminal defence barristers, who rub

with the inimitable “razzle dazzle” and obfuscation that leads

shoulders with men and women the public is often quick to judge,

the common man to proclaim their disdain for an opaque and

and slow to forgive? Perhaps more importantly, have you resolved

aloof legal system, open only to those who know how to “play

to pre-record and series link all upcoming episodes of Suits?

the game.”4 We are prompted to question what makes a good lawyer: One who can apply the law imaginatively and ruthlessly to achieve a particular outcome, or one who empathises with, and strives to uphold the dignity of, their clients?

Menkel-Meadow writes:

“We are also increasingly captivated by the new incarnation of the sleek, chic lawyer.”

“...by comparing depictions of lawyers’ ethical dilemmas to those of other professionals and other workers, we can ask why lawyers are expected to be ethical within their professional rules, and why lay consumers of popular

1. 2. 3.

culture are permitted to judge them by more than their own professional constraints.”5 4.

As with the perennial debate regarding politicians’ private lives, does it matter if your lawyer has no personal scruples, so

5.

An ultimately unsuccessful oath. Carrie Menkel-Meadow, ‘Can They Do That? Legal Ethics in Popular Culture: Of Characters and Acts’ (2001) 48 UCLA Law Review 1305. When Legally Blonde was released in 2001, 47.4 per cent of Juris Doctor’s enrolled in the US were female, more than double the number enrolled 25 years before (American Bar Association, First Year and Total JD Enrollment by Gender: 1947-2010 (2010) American Bar Association <http://www. americanbar.org/content/dam/aba/administrative/legal_education_and_admissions_to_the_bar/council_reports_and_resolutions/1947_2010_enrollment_by_gender.authcheckdam.pdf> at 24 March 2013). Eric Bana, in his first ever film role, summed up this sentiment best in cult-classic, The Castle (1997): “I’m so impressed with your fighting spirit Mr Kerrigan, and can I just say how disenchanted I am with our legal system.” Carrie Menkel-Meadow, ‘Can They Do That? Legal Ethics in Popular Culture: Of Characters and Acts’ (2001) 48 UCLA Law Review 1305, 1312.

long as they perform in court? Is it significant that most of our

The Full Bench

21


With Julia Gillard’s condemnation of live animal exports, the issue of animal cruelty has been brought back into sharp focus. Jasmine Marosvary explores the role of religion in ritual animal slaughter and its implications for both animal and human rights.

Animals: sentient beings or objects?

“The question is not, ‘Can they reason?’ nor, ‘Can they talk?’ but rather, ‘Can they suffer?’”

1

The underpinning mentality of anti-cruelty laws in Western liberal societies has upheld an anthropocentric approach,4

22

T

hese words, pronounced by social reformer Jeremy Bentham, were the pivotal starting point for the

anti-cruelty legislation. This position can be derived from Aristotle’s concept of scala naturae, a hierarchy that has set

development of the animal protection movement. Australian animal welfare legislation in every state and territory prohibits cruelty to animals, with additional provisions located within criminal law legislation.2 However, animals slaughtered for food, particularly those slaughtered under religious practice in commercial settings, are generally not

the foundations of our moral values and legal approach towards non-human sentient beings.5 The ‘Great Chain of Being’ starts from God at the top of the ladder as the highest form of perfection. The scale progresses downwards to the lowest ranks, ordering humans above animals. The Animal Care and Protection Act 2001 (Qld) states

afforded protection under this legislation. Section 24(1)(b)(ii) of the Prevention of Cruelty to Animals Act (NSW) 1979 (“the Act”), provides that for the purposes of food production, the destruction of animals for food is not an act of cruelty. Additionally, and importantly, s 24(1)(c)(i) of the Act provides a specific exemption for the religious dietary

one of its purposes is to ‘provide standards for the care and use of animals that achieve a reasonable balance between the welfare of animals and the interests of the persons whose livelihood is dependent on animals’.6 Here, the provision has identified that animals’ rights — if they exist at all — are subordinate to humans’ rights, as the welfare of

requirements of Islamic and Jewish traditions. Exemption for religious slaughter is a contentious issue due to its direct implications on human and animal rights.3 Cultural sensitivity is of particular relevance in Australia, due to its multicultural composition. It is clear that religious freedoms must be balanced with the rights of animals. However, this balancing act is appearing almost impossible to perfect.

that is, animals are regarded as property within Australian

animals is less important than that of humans. Exclusive possession of property provides the owner with the right to use an animal bred for human consumption as they deem fit. To allow for progress towards equal consideration of animal interests in the eyes of the law, Gary Francione, legal scholar and animal rights activist, adamantly argues

The Full Bench

Photo- (www.lucarossato.com)

Religious Animal Slaughter: A Meaty Issue


RELIGIOUS ANIMAL SLAUGHTER

“…the issue is not if animals have rights, but whether those rights are effectively upheld under their status as property.” we need to remove the legal status of animals as 7

A religious issue

property. He is firmly of the belief that animals

Religious concepts, such as those of Judaism and Islam, which advocate

must be treated as more than a commodity.

compassion and consideration of animal welfare, are at risk of being

“The problem is that 99.99% of our animal use cannot be justified by anything but human pleasure, amusement, or convenience.

stripped down by a self-regulated industry that prioritises economic benefits above moral objections to the poor treatment of animals. Both the Muslim and Jewish faiths have precise requirements for the

“The only justification that we have for the

slaughter of animals. For example, the Muslim rules in regards to animal

pain, suffering, and death that we impose on

slaughter are outlined in the Quran. Pork, blood and animals slaughtered

these billions of animals is that we enjoy eating

by beating, strangulation, falls, goring or other damage from animals,

animal foods, or that it is convenient to do so, or

and animals dedicated to other religions, are all strictly forbidden and the

that it is just plain habit,” Francione said.

name of Allah must be invoked upon slaughter. While strict rituals are in place for slaughter, debate has arisen in

“We love some animals; we stick forks into others. That is what I mean by ‘moral schizophrenia’.”

instances where religious slaughter allows for animals to be killed prior to being stunned – an action allowed under the guise of religious slaughter in the exemptions provided for by the Act. Glenys Oogjes of Animals Australia has spoken out against the religious practice of animal slaughter, outlining that slitting the throats of unconscious animals can cause pain, distress and terror for up to 20 seconds. “Try counting to 20 and imagine the beast’s horror,” she said. However, Rabbi Mordechai Gutnik from Kosher Australia argues that

Interestingly, Francoine exposes that the human

ethical issues such as suffering to the animals in unfounded.

attitude towards pets, whom we “love” and

“We have studies proving it is not inhumane,” he said.

deem to be “sentient beings with distinct

Obviously, tensions are rife in this area when religious freedoms are

personalities,” starkly contrasts with humanity’s

at play.

Farm Santuary

attitude to non-domestic animals whom are dismissively slaughtered for consumption. “But our dogs and cats are no different from the animals whose bodies we eat or who are used to produce dairy and eggs. We love some animals; we stick forks into others. That is what I mean by ‘moral schizophrenia’,” he said. Those who criticise the rights of animals state that it is unnecessary to grant equality to animals. However, Francione points out that this view stems from the legal status of animals that equates them to inanimate objects that cannot be afforded with legal rights.

However, what is clear is that the widely held belief that livestock are

Yet, the issue is not if animals have rights, but

afforded protection under anti-cruelty legislation from birth to slaughter

whether those rights are effectively upheld under

is not in fact true. Exemptions within the law allow, even if it does not in

their status as property.

fact occur, for animals to be slaughtered by means that may be inhumane

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23


RELIGIOUS ANIMAL SLAUGHTER

as well as contrary to religious dietary requirements.

however it is questionable if this conclusion can always be

The public response to Animals Australia’s Ban Live

justified.

Export and Make It Possible campaigns illustrate the increasing consumer demand for transparency of animal welfare standards and slaughter practices of Australian livestock. It is clear that the moral values of the Australian public have shifted, as society now demands a higher standard for protection of animals bred for slaughter, which 1.

is beyond the legislation’s current scope. The foundation on which animal rights advocates oppose religious slaughter relates to the principle of one law for all and the reduction or avoidance of unnecessary

4. 5. 6.

risk to sentient beings through religious privilege.8 In the

7.

case of animals, whose status is mere property, there is

8.

no fair playing field.9 It is a regular occurrence in modern

9.

society to see such tensions as causing discrimination,

24

2. 3.

Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (Clarendon Press, 1979/1996), p 283. See, eg, Crimes Act 1900 (NSW) s 530. Joel Silver, ‘Understanding Freedom Of Religion In A Religious Industry: Kosher Slaughter (Shechita) And Animal Welfare’ (2011) 42 Victoria University of Wellington Law Review 671. Alex Bruce, Animal law in Australia (LexisNexis Butterworths, 2012), [2.17]. Ibid [1.7]. See Animal Care and Protection Act 2001 (Qld) Pt 2 Div 1 s 3(b)(i) (emphasis added). See Gary Francione, Animals, Property, and the Law (Temple University Press, 1995). Animals Deserve Absolute Protection Today and Tomorrow, Gary Yourofsky <http://www.adaptt.org/>. Department of Local Government and Regional Development v Gregory Keith Dawson (Unreported, Fremantle Magistrates Court, Magistrate Musk, 22 July, 2008) 60.

“Australian animal welfare legislation in every state and territory prohibits cruelty to animals.”

Photo- Marji Beach The Full Bench


I

Trial by social media: a modern day issue

n Ohio, America, two high school football stars stood trial in March 2013, charged with raping a 16-year-old girl. The story was played out all over the world and disseminated rapidly through various online

public’s point of view, the all powerful self-informed

media platforms, allowing the public to share their views, scrutinise the

individual of the information age is given the dominant

evidence and perform their own investigations. Effectively, a case was

voice on the issue,” Jesse Matheson from news website,

built of the night’s events from news sites, social networking forums and

The Feed, said. 2

blogs. While the juvenile court had imposed a ban on all electronic

Social media in the Jill Meagher case

devices in an attempt to suppress the social media use in the courtroom, the boys’ families were still questioning whether there was actually anything left to try. While the defendants pleaded not guilty, their peers, as well as the rest of the world, had already played out the judicial process. They had already been accused, prosecuted, defended, and judged, on various media platforms. This case exemplifies the sheer enormity and rate at which social media can significantly impact a trial, and the growing need to control what is published and accessible online. While it was social media which initially spurred the prosecution, it also severely threatened the defendants’ constitutional right to a fair trial. The popular phrase “trial by media”, most renowned from cases such as Lindy Chamberlain and the murder of model Caroline Byrne, appears to be superseded by an even greater force of our time; “trial by social media”. The “trial by media” cases received such a notable degree of media hype, that much of society was convinced there was a wrongful conviction in both cases. In the Carolyn Byrne murder trial, some media outlets went so far as to claim partial responsibility for securing a guilty verdict and not allowing a fair trial to proceed.1 Social media, however, has proved to be an even greater threat to the judicial process. The speed of information uploads and increasing numbers of live feeds about any subject, accessible by anyone, at any place, and at any time, are impossible to truly regulate. This wide reach ultimately means the role of the judge is diminished to any individual who owns a computer and knows how to use social networking websites. “Instead of an authoritative and informed media opinion tainting the 1. 2. 3. 4.

R v Wood [2008] NSWSC 817. Jesse Matheson, Trial by Social Media – Is It Time for Reform? (2013) The Feed <http://thefeed. com.au/trial-by-social-media-is-it-time-for-reform/> at 21 March 2013. Adrian Lowe, ‘Trial by Social Media Worry in Meagher Case’, The Age (Melbourne), 28 September 2012. Pia Akerman, ‘Social media could impact jury trial of Jill Meagher’s alleged killer Adrian Ernest Bayley’, The Australian (Sydney), 1 October 2012.

Primarily due to news outlets and social media, the case of Jill Meagher is permanently ingrained into the minds of almost every Australian citizen. In the early stages of this case that disturbed the nation, social media engagement regarding the investigation was spread in tsunami-like fashion, with 35 million related tweets, and a Facebook hate group calling for the accused to be “executed already” achieving 18,000 fans.3 However, it became clear that social media attention was proving detrimental to the course of justice in September 2012 when Jill Meagher’s husband and Victoria Police began pleading with social media users to refrain from posting comments about the case.4 The Victoria Police Facebook page posted, “to all our Facebook followers we ask you to refrain from posting anything on social media which could jeopardise or endanger the presumption of innocence.” They feared that the prominent identification of the murder suspect, and negative portrayal of him in the media and social media, would render it impossible for the accused to receive a fair trial and had the potential to endanger the presumption of innocence the accused was entitled to. Additionally, the negative attention and widespread public belief in the guilt of the accused prior to conviction has the power to place improper pressure on the accused to admit guilt and settle, even in instances of potential innocence.

Members of the jury, do you have Facebook? The Jill Meagher case exemplified how social media, an ever-powerful platform, can create a social movement through the rampant dissemination of information about

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25

Legal Instruction

In the age of social media, an accused can be investigated, critiqued, prosecuted, defended and judged before they take their first step into the courtroom. Thus, is an impartial, representative juror a dying breed? Carla Sheiban explores how social media has affected modern litigation.

Image- Center for Computer-Assisted

Innocent until the Internet proves you guilty


TRIAL BY SOCIAL MEDIA

the suspect. It appeared that there was a great

Currently in NSW jurors are informed that carrying out their own

mobilisation of public sentiment against the

investigations during a trial is illegal, while Western Australia

accused through “action orientated information

has expanded the guidelines to include prohibition of Internet

5

such

use, or social networking, relating to trial. Other Australian

information sharing guarantees that the selection

states completely ban electronic devices in the courtroom.

of jury members, consciously or not, would have

While eliminating and regulating jurors’ use of social media is

sharing”.

The

likely

consequence

of

Photo- Ed Yourdon

impossible, it is essential that Australia attempt to address this issue in all jurisdictions.

The role of the media Yet trial by Internet cannot only be blamed on social media sites. While the media and free press are indispensable pillars of democracy, the media’s role should ultimately be as a watchdog. Building an effective media system to deliver information to the public is essential. Despite this, the media tends to place an unconscious pressure on all people, including jurors in high-profile cases, to make a decision for the society as

“…the all powerful, self-informed individual of the information age is given the dominant voice on the issue.”

26

been aware of such widely spread sentiment

a whole, thus elevating their verdict beyond the mere analysis

regarding the accused, and prior to any conviction,

of the evidence presented to them, and into the court of public

resulting in a potential incapacity to prosecute.

opinion. It must be reiterated to jurors that “the law and our

The increasing use of social media and its affect on recent litigation has stressed the need to moderate social media platforms for criminal trials. Facebook and Twitter’s lack of cooperation with the Australian government in removing uploaded content hinders this regulation, as does the expanding presence of hackers finding and spreading undisclosed information. In reality, attempts to “control” the flood of social media feeds at an incredible pace is extremely difficult, and it is likely that it would remain impossible to quarantine juries from social commentary.6 However social media users, particularly jurors who desire to engage in the public conversation, both in and out of the courtroom, still need to be aware of their responsibility and the laws that underlie this. In the United States, the model set of jury instructions used by judges was recently updated to address jurors’ use of social media to research

collective sense of justice are not necessarily the same thing”.8

Conclusion In modern society, where information from around in the world is at our fingertips, and online social sharing dominates life more than physical reality, it is a contradiction to say a jury selection pool can be both impartial, and representative, of our society. The process of selecting and challenging potential jurors based on their aesthetic qualities will not cause more harm than a highly bias jury hearing a case which has been overexposed in the media. While a big change might not occur overnight, we should expect court officials to actively consider this issue and determine strategies which would increase awareness of the consequences and laws affecting what is published online, in order to preserve the process of justice as it is re-shaped by new technology.9 5. 6. 7.

or communicate about a case during trial. It is believed that repeated reminders to jurors about the consequences of the trial were most effective for prevention.7 It was only at the end of 2012 that the Australian judiciary and the Executive began discussing the need for coordinated national guidelines to deal with social media in courtrooms.

8. 9.

Adrian Lowe, ‘Trial by Social Media Worry in Meagher Case’, The Age (Melbourne), 28 September 2012. Andrew Dodd, Attorneys-General looking for ideas to thwart social media (2012) Crikey <http://www.crikey.com.au/2012/10/02/attorneys-general-looking-for-ideas-to-thwart-social-media> at 22 March 2013. The Proposed Model Jury Guidelines provide detailed explanations of the consequences of social media use. “The Committee believes that the more frequently jurors are reminded of the prohibition on social media, whether the reminders are visually or orally given, the more likely they are to refrain from social media use during trial and deliberations.” (
Judicial Conference Committee on Court Administration and Case Management, Proposed Model Jury Instructions: The Use of Electronic Technology to Conduct Research on or Communicate about a Case (2012) Judicial Conference Committee on Court Administration and Case Management <http://www.uscourts.gov/uscourts/News/2012/jury-instructions. pdf> at 23 March 2013. Adrian Lowe, ‘Trial by Social Media Worry in Meagher Case’, The Age (Melbourne), 28 September 2012. Michelle Ebbs and Leigh Dawson, Guilty beyond a reasonable tweet – Role of social media in the Australian courtroom (2013) University of Notre Dame Australia <http://www.nd.edu.au/news/media-releases/2013/165> at 22 March 2013.

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GENE PATENTING AND THE LAW

How much are your genes worth? The law and ethics surrounding gene patenting

down by the Federal Court has fuelled moral debate regarding patenting genes, which could lead to the monopolisation of certain diagnostic tests that have the potential

hile the controversy surrounding the patenting of

W

to assist those suffering with

genetics isn’t novel to the national discourse, the

illnesses but Natasha Krnjaic

issue has become more controversial than ever since the

argues that gene patents should

decision of the Federal Court in Cancer Voices Australia

be allowed and an outright ban on

v Myriad Genetics (Myriad)1 in February this year. For the first time, an Australian Court ruled on the legality of gene

gene patents is not appropriate.

patents. The court contentiously held that genes could be

however, the case dealt with extracted DNA and RNA, which

patented.

was held to be an invention and thus could be patented under

The public outcry that ensued was led most prominently

28

A controversial decision handed

s 18 of the Act.3

by cancer sufferers who believe the decision will hinder

The decision has not allayed heated discussion on the topic

research for cancer diagnoses and cures. Moral arguments

and it has been widely criticised. The media has been quick to

also arose that questioned whether gene patents were akin

scrutinise the court and bring moral debates to the fore. The

to commodifying humanity.

case is currently being appealed.

But we must ask if ethical concerns are best addressed by an outright ban on gene patents? I believe that a blanket ban on gene patents is unfavourable. While discourse surrounding the ethics of gene patenting may suggest that a ban is necessary, there are other solutions to mitigate ethical concerns. In fact, it is my view that an outright ban on gene patents would be detrimental in practice by undermining the functioning of Australia’s biotechnology sector and would actually impede scientific research and development.

Gene patenting: the law Prior to the recent decision of the Federal Court in Myriad, there was no judicial decision on whether or not genes reached the criteria for patentability under s 18 of the Patents Act 1990 (‘the Act’). The case determined a grey area of law in regards to whether or not genes would meet the criteria for patentability. The question to be decided was whether genetic material is a discovery or invention. In order for a gene to be patented, it must be found to be an invention, an ‘artificially created set of affairs in the field of economic endeavour’.2 His Honour held that those naturally occurring genes inside the body did not fall within the scope of patentability;

“An outright ban on gene patents would be detrimental in practice by undermining the functioning of Australia’s biotechnology sector and impeding scientific research and development.” Should patents be granted when doing so potentially risks the public good? A concern of those opposing gene patents is that gene patents, in providing a monopoly over a segment of genes, may stifle research and hamper development.4 Although it is a concern theoretically, in practice the number of patents affecting research in Australia is small. ALRC findings found that gene patents hadn’t substantially affected the research sphere in Australia as most had been able to reach licensing agreements.5 However, it is clear that there is no safeguard to prevent patent holders from exercising their full rights over their genes

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GENE PATENTING AND THE LAW

and thus potentially smothering scientific gains if they choose to do so. For example, Myriad, a company with the patent over the BCRA1 and BCRA2 genetic sequences that identify women who may develop breast and ovarian cancer, refused to licence their patent to other researchers and controlled all testing relating to two strands of DNA. This could have proven detrimental, however the public backlash forced Myriad to commit licensing agreements – something that organisations may be forced into in the future due to public outrage. In place of a blanket ban, a compulsory licensing scheme or a patent advisory body to advise on licensing agreements would be a more reasonable response to this ethical concern. It would allow patent holders to retain their rights while also promoting research.

Photo- Lee Kolbert

Should we put a price on humanity? Gene patents have been criticised for commodifying

humans.

By

commodifying

humans, it is argued that our human dignity is subverted. This conclusion is based on the premise that human beings have dignity. Immanuel Kant’s general moral principle, the categorical imperitive, puts forth the notion that human beings have intrinsic moral worth and we should treat them as such and not as a means to an end.6 Radin argues that once we place market language to describe something, in this case genetic patents, we put an extrinsic value on humanity,7 essentially commodifying humans. However, he further argues that as humans also have intrinsic moral worth they are only partially commodified and also only a very small extracted part of a human is patented and therefore an entire human is not 8

itself commodified. He contends that due to a partial commodification, human dignity is only threatened but not violated. A ban on gene patents would not alleviate this concern as it highly debateable whether moral dilemmas exist or not on a case-bycase basis. An ethics committee, which could

29

be turned to when gene patents are To outright ban gene patents would granted,

may

limit

moral

concerns be to undermine the current practice.

without damaging our existing patent Ultimately this would be crippling to the system.

biotechnology sector and may inhibit

Practical considerations

research and development.

Despite moral concerns, on a practical Conclusion level, a ban on gene patents would be

Legislative and regulatory reform should

detrimental to our biotechnology sector. be adopted in preference to a blanket ban Publicly funded research institutes and on gene patents. It would alleviate ethical companies within the biotechnology concerns without disrupting opportunities sector rely heavily on patents to innovate for innovation by gene patent grants. and operate through using patents to accumulate funding for ventures. The Association of Australian Medical Research Institute (AAMRI) derives a significant proportion of its income from the licensing of previous innovations.9 The income eventually flows back to the institute and perpetuates a cycle of innovation and research.

The Full Bench

1.

Cancer Voices Australia v Myriad Genetics Inc [2013] FCA 65 National Research Development Centre Corporation v Commisioner of Patents (1959) 102 CLR 252 3. Patents Act 1990 4. D Nicol and J Nielson, Patents and Medical Biotechnology: An Empirical Analysis of Issues Facing the Australian Industry (2003) Centre for Law and Genetics Occasional Paper No. 6 142. 5. Australian Law Reform Commission, Genes and Ingenuity: Gene Patenting and Human Health, report no 99 (2004) [77] 6. D Resnik, ‘DNA Patents and Human Dignity’ (2001) 29 Journal of Law, Medicine and Ethics. 7. Ibid. 8. Ibid. 9. Senate Community Affairs Committee, Commonwealth of Australia, Gene Patents (2010) [p.80] 2.


ALL LAW FIRMS SAY THEY’RE DIFFERENT. BUT ARE THEY? TO FIND OUT VISIT CORRS.COM.AU/GRADUATES


WRONGFUL LIFE

Photo- Simon Daniel Photography

Wrongful life actions: A step in the gnorw direction? ‘Wrongful life’ cases have forced the Australian judiciary and public to question the value of a life, ESPECIALLY the life of a person with a disability. Deena Palethorpe examines whether these actions are appropriate in the legal sphere, or at all.

I

n the landmark case of Harriton v Stephens (2006),1

the High Court emphatically rejected wrongful

life actions as a feature of Australian law. Apart from the question of legality, the High Court considered a number of ethical questions, both in favour of and against extending the compensation principle and the framework of tort law in general. Thanks to recent advances in medical technology, doctors and physicians are increasingly able to identify and assess the likelihood and risk of a child being born with a congenital disorder, such as Down syndrome, TaySachs and various other foetal anomalies. Wrongful life is said to occur when a medical practitioner negligently

life in and of itself represents an injury that justifies an award of damages.3 But to what extent is the law willing to accept an individual whose argument is built on the foundation that no life is preferable to life? Is this an action capable of success? And if so, what price, if any, can we put on a life?

Damage and the Impossible Comparison The major impediment to the recognition of wrongful life actions is the conceptualisation of the loss suffered. The compensation principle provides that an award of damages should, as far as possible, restore the plaintiff to the same position they would have been in but for the wrong.4 Therefore, the plaintiff must demonstrate that they have suffered a cognisable and perceptible loss,5 for if there is no such loss, there can be no award of damages. To determine whether the plaintiff has suffered the requisite loss, the Court employs a counterfactual test in which it assesses and compares the pre-injury and postinjury position of the plaintiff.6 It is here that wrongful life actions encounter conceptual difficulties, as in the words of the High Court, this exercise involves an ‘impossible’ comparison between life and non-existence,7 and it calls upon the Court to assess the relative benefits of life with a disability as opposed to non-existence.8 The question therefore becomes one of how non-

fails to identify this risk, and in doing so fails to provide

existence should be quantified, valued and understood, as

their patient with all relevant information regarding

the compensation principle provides that a person must

their pregnancy.

2

be left in a worse condition as a result of the negligence

Wrongful life actions are brought in the name of the

to justify an award of damages. Therefore, an award of

child, with the child claiming that but for the negligence

damages in a wrongful life action would necessarily confirm

of their medical practitioner, they would not have been brought into existence and consequently would not have suffered the damage for which they now seek compensation. The ‘gist’ of the action is that the child’s

that a life of disability is less favourable than non-existence. 1. 2. 3. 4. 5. 6. 7.

Harriton v Stephens (2006) 80 ALJR 791 (‘Harriton’). Dean Stretton, ‘Wrongful Life and the Logic of Non-Existence’ (2006) 30 Melbourne University Law Review 972, 973. See also, McKay v Essex Area Health Authority [1982] 1 QB 1166 (CA). Harriton (2006) 80 ALJR 791, [251] (Crennan J). Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, 39 (Lord Blackburn). Cattanach v Melchior (2003) 215 CLR 1, [23] (Gleeson CJ). Harriton v Stephens (2004) 59 NSWLR 694, [24] (Spigelman CJ). Harriton (2006) 80 ALJR 791, [252] (Crennan J).

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31


WRONGFUL LIFE

To apply the compensation principle in this context would perpetuate a system in which disabled persons are encouraged

Photo- Kalexanderson

to decry their own existence in pursuit of an award of damages.12

Corrective Justice Alternatively, it has been suggested that rather than devaluing the life of a disabled person, providing compensation for wrongful life is a practical recognition of the difficulties faced by disabled persons

“Whether one believes in the rightfulness of these claims or not, perhaps the most appropriate question is why recourse Wrongful Birth Wrongful life actions should not to be confused to the law is necessary?” with wrongful birth actions, in which the parents

above and beyond that of able-bodied persons. Kirby J was a

(rather than the child) seek compensation for

strong advocate for the view that providing compensation would

the economic loss associated with the birth of

afford the disabled community with a degree of empowerment,

an unwanted child caused by the negligence

leading to a more dignified existence.13

of the medical practitioner. It is not the birth

32

itself that is the relevant loss, as in wrongful

Lack of Certainty

life actions, but the additional financial burden

A relevant concern raised by the majority judgment in Harriton was

borne by the parents as a result of the birth of the

the lack of precision and certainty in defining the class of persons

child. Herein, the compensation principle does

who would qualify as being entitled to compensation under

not present the same conceptual difficulties as

wrongful life actions.14 In his dissenting judgment, Kirby J came

in wrongful life actions. In Harriton, the High

to the conclusion that life with a disability could represent a loss,

Court alluded to wrongful birth actions as a

but was unable to demonstrate how and when this would be the

valid alternative open to the parents of the

case.15 It was simply enough that the principles of corrective justice

9

disabled child born in the same circumstances.

would warrant an award of damages.

Sanctity of Life Argument

appropriately measured and quantified, as this process would entail

The majority was concerned as to how the loss would be The most salient objection to wrongful

judges making value decisions on the quality of an individual’s life.

life actions centres upon the sanctity of life

This would require the Court to answer the question of exactly

principle.10 This principle provides that a life

how disabled you have to be to warrant an award of damages;

with disability cannot rightly be regarded as a

necessarily trivialising disability by ranking and ordering the extent

loss, as the inherent implication that arises from

of one’s disability in the process.16

an award of damages for wrongful life is that

Whether one believes in the rightfulness of these claims or not,

the life of a disabled person is less valuable

perhaps the most appropriate question is why recourse to the law

than the life of an able-bodied person. As

is necessary? To truly aid the disabled community, society needs

such, the operation of the counterfactual test in

to address the root cause of the problem, and society can only

wrongful life actions is ‘odious and repugnant’

do this by changing its perceptions and improving its institutions,

and clearly sends a negative message about

for the law is nothing more than a reflection of our society.17 It has

11

the value of a disabled life.

been said that the true measure of a nation’s greatness is the way

8.

in which it treats its weakest members. Considering this, perhaps

9. 10.

11. 12.

Harriton (2006) 80 ALJR 791, [168] (Hayne J). This has judicially been referred to as the ‘Hamlet role’: Procanik v Cillo (1984) N.J. 339, 358 (Handler J) (2006) 80 ALJR 791, [200] (Callinan J), referring the Court of Appeal decision; Harriton v Stephens (2004) 59 NSWLR 694 (Ipp JA). See, eg, Gleitman v Cosgrove 49 N.J. 22 (1967), 29-31, where it was said ‘even if [such] damages were cognisable…a claim for them would be precluded by the countervailing public policy supporting the preciousness of human life’. Harriton (2006) 80 ALJR 791, [258] (Crennan J). Darpana M Sheth, ‘Better Off Unborn? An Analysis of Wrongful Birth and Wrongful Life Claims under the Americans With Disabilities Act’ (2006) 73 Tennessee Law Review 641, 666.

we are not as great as we have come to think. 13. 14. 15. 16. 17.

Harriton (2006) 80 ALJR 791, [134] (Kirby J). (2006) 80 ALJR 791, [261] (Crennan J). Harriton (2006) 80 ALJR 791, [119]-[126] (Kirby J). Jennifer Ann Rinaldi, ‘Wrongful Life and Wrongful Birth: The Devaluation of Life with Disability’ (2009) 1 Journal of Public Policy, Administration and Law 1, 4. Harriton (2006) 80 ALJR 791, [205]-[206] Callinan J opined that this is a matter which should be addressed by the legislature, not the judiciary.

The Full Bench


INTELLECTUAL DISABILITY AND THE LAW

Intellectual Disability and the Law By Alireza Darabi

I

Photo- Rachel Groves

n the early hours of the morning on 13 July 2005, a 7-week-old baby awoke and began to cry. The child’s father allegedly attempted to settle the child to no avail.

He then used a method which had proven effective on numerous other occasions. The then 23-year-old sat on the child to stop it from crying, inadvertently causing positional asphyxiation, effectively killing the child almost instantly. The father claimed intellectual disability as a defence under mental impairment and he was subsequently convicted of manslaughter and sentenced to 7.5 years imprisonment with a 4.5 years non-parole period.1

He appealed the

sentence in 2008, and the Supreme Court found that the sentence had been “manifestly excessive” due to the disabilities faced by the father and in turn, reduced the sentence to 6 years with a 3.5 years non-parole period.2 What this effectively means is that the father is potentially

An intellectual disability defence

able to walk free in 2009, four years after killing his only

The defence of mental illness was perhaps most notably

child.

elucidated in M’Naughten’s Case.5

“The offence must be understood against the

“At the time of the committing of the act, the party

background of the applicant’s congenital intellectual

accused was labouring under such a defect of reason, from

deficits and his depression and anxiety at the relevant

disease of the mind, as not to know the nature and quality

time,” Basten JA held in the appeal proceedings.3

of the act he was doing, or, if he did know it, that he did not

However, the father’s former partner and mother of his child argued that intellectual disability should not excuse an individual from a charge of murder.

know he was doing what was wrong,” the House of Lords held.6 To include the defence of intellectual disability under

“This whole diminished responsibility excuse is such

the banner of mental illness defence would therefore

a cop-out…the justice system needs to change. He has

demand recognition of intellectual disability as a “disease

virtually got away with murder,” she said.4

of the mind”7 which from a legal perspective incorporates a

The pervading conundrum surrounding the use of

much wider view than that of a medical perspective.8 It must

intellectual disability as a mental impairment defence is that

be proven that the offender has a form of mental disability

in sentencing procedures, “retribution without reference to

that “seriously impairs either temporarily or permanently,

moral culpability is more reflective of a desire for vengeance

the mental functioning of a person”9 and therefore rids the

than proportionate punishment under the law.”

individual of criminal liability.

Where does intellectual disability therefore stand as a

While ‘disease of the mind’ under the law is given a

mental impairment defence? Is it a case of recognising

broad application, why is it that there are almost no cases

a debilitating disorder affecting the ability of sufferers to

where the mental illness defence has been used for persons

recognise the consequences of their actions or is it a veil

suffering from an intellectual disability?10

much too broad to be seen as a criminal defence?

Does an intellectual disability defence exist in our law? Cases outlining the use of intellectual disability as

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33


INTELLECTUAL DISABILITY AND THE LAW

a defence of mental illness are few and far between. Although legal textbooks dating back to the 16th century can be found outlining a class of ‘ideots’11, or people deemed to be ‘non compos mentis’ (not of sound mind), in which an intellectual disability defence was available to people with such a high degree of impairment that they could not comprehend everyday actions, count to 20 or know the date or day of the week. This appears to have roughly transcended time to become a defence of mental illness, where intellectual disability does not often play a role.

“Is it a case of recognising a debilitating disorder affecting the ability of sufferers to recognise the consequences of their actions or is it a veil much too broad to be seen as a criminal defence?” Current Position With evidence of a defence existing in the past, as well as an increase in dialogue regarding the matter of intellectual disability, it may be argued that although there is currently no explicit defence of intellectual disability under a defence of mental impairment, there may well be room to justify such a cause. Under the two limbs of the M’Naughten Rule, this would require the defendant to show as a result of the defendant’s intellectual disability, that they did not know the quality of the act or that they did not know the act was wrong.

34

Returning to a case such as Leach,13 it becomes evident that there is the possibility of an intellectual impairment so significant

Photo- Erwin F

that such a defence becomes a valid, realistic and just outcome. A man not being able to forsee the effects of sitting on a 7-week-old baby displays a state of mind deficient of complete consequence recognition and therefore fulfils the first limb of the M’Naughten Rule. Although there is no clear-cut answer as to whether a defence of intellectual disability should be included amongst defences of The application of the defence in the modern Australian context is a rarity. The Western Australian case of Schultz,12 where a man purportedly accidentally killed a woman by striking her in the face twice with an iron

show that this is an area of law that would at least require further enquiry. Individuals with a severe intellectual disability may have their incapacities accounted for just as other forms of mental illness, but this would require an inevitable exercise of subjective analysis

bar, was an example of the unsuccessful application of

with variations from case to case.

an intellectual disability defence in an Australian context.

This is an important consideration not only for the welfare of

In this case, the defendant’s, whose IQ was between

society broadly, but also for those with intellectual disabilities,

69 and 78, defence was rejected by the court, drawing attention to the exercise of the court’s discretion as to the sufficiency of the intellectual disability and its incapacitating nature. Schultz’s case dictated that there must be more than sub-par intellectual deficiencies in order to reach the severity of a mental illness defence in the eyes of the court, maintaining a careful precedent.

mental illness, there are very apparent and strong indications to

seeking appropriate effective methods of trial and sentencing. 1. Leach v The Queen [2008] NSWCCA 73. 2. Ibid. 3. Ibid. 4. Unnamed author, ‘Just three years for killer’, Newcastle Herald (online), 6 April 2008 <http://www.theherald.com.au/story/482128/just-three-years-for-killer/>. 5. Queen v. M’Naghten, 8 Eng. Rep. 718 [1843]. 6. ibid. 7. Ibid. 8. Allison Merridew: Risks vs Rights, Australia and New Zealand Association of Psychiatry, Psychology and Law (ANZAPPL) annual congress Manly NSW, 23-26 October 2008. 9. Mental Health Act 1990 (NSW). 10. Above n 8. 11. Allison Merridew: Risks vs Rights, Australia and New Zealand Association of Psychiatry, Psychology and Law (ANZAPPL) annual congress Manly NSW, 23-26 October 2008. 12. Schultz (1981) 5 A Crim R 234. 13. Leach v The Queen [2008] NSWCCA 73.

The Full Bench


REVIEW: INTERNATIONAL WOMEN’S DAY BREAKFAST

Review International Women’s Day Breakfast

Eating

By Alexia Attwood

breakfast with Prime Minister, Julia Gillard,

objects or chattels,” she said.

Governor of NSW, Marie Bashir, and CEO of Westpac, Gail

She further highlighted her personal desire to see

Kelly, is not your average morning, but it certainly was a great

the end to dowry murders, honour killings, female genital

one for the UTS law students who attended the International

mutilation, trafficking, rape and domestic violence.

Women’s Day Breakfast on 8 March 2013.

“That is not a life we want for any woman or any girl. Not

Gazing across the horizon of breakfast tables were

here. Not overseas. Not anywhere. Not ever.”

hundreds of purple ribbons proudly pinned upon the collars

Furthermore, we had the pleasure of hearing from Rosie

of firm and business representatives, politicians, community

Johnson, a senior magistrate at PNG Magisterial Services.

group members, educators, students, all there united under

Ms Johnson, awe-struck standing before the 1,700-strong

one cause: the advancement of women worldwide.

crowd, shared her own journey of growing up in a village

The priority theme for this year was ending violence against

where she was subject to an arranged marriage that she

women, with a specific focus on Papua New Guinea (‘PNG’),

tried to escape, countless acts of physical violence and

where a harrowing 65% of women have experienced physical

harassment, and other almost debilitating obstacles that

violence and/or sexual violence, and 67% of women have been

finally led her to become a senior magistrate. St Andrews student, Joseph Watson, was the first male

beaten by their husbands. The gratefulness of the UN Women Australia staff

speaker at a UN Women Australia’s International Women’s

permeated the energy of the room. This limitedly resourced

Day breakfast, and for a high school student he certainly

NGO spent months preparing for its string of International

had an impressive ability to charm the crowd and, I assume,

Women’s Day celebrations across the nation.

make every school girl in the room blush.

Prime Minister Gillard, carrying the badge of Australia’s first

Master Watson spoke about his desire to see more men

female PM, took the podium, exhibiting an unquestionable

declare themselves feminist, a refreshing sentiment given

passion for gender equality.

the room full of women who probably at some point in their

“But today our celebration must be tempered by realism.

lives had felt judged for being a closeted or outspoken

“The level of assault and abuse is still too high. The gender pay

‘feminist’ – a word that in this time most simply embodies a

gap is still too wide. The number of women in senior roles is still

desire to enjoy gender equality. Some may reject the concept of transforming a country

too few,” she said. The room fell silent as she spoke of the possibility and

like PNG where violence against women is so ‘culturally

the importance of change, starting with the government’s

engrained.’

freshly implemented Anti-slavery Initiative, and the passing

referring to the male culture of the country? Why does that

of the Slavery, Slavery-like Conditions and People Trafficking

culture supersede that of the women’s? Peace and gender

Act which seeks to eliminate modern slavery in Australia and

equality is not some western-imposed fantasy – it’s a goal

overseas.

that we need to keep striving towards. For that room full of

“Those women don’t have a voice so we must speak for them.

1,700 breakfasters, and every global citizen who celebrated

Not just to speak but to act.

International Women’s Day, I’d like to think that there is no

“This is one of the many ways that Australia is saying ‘no’. No

end point in the fight to realise this goal.

to people trafficking. No to slavery. No to treating women like

The Full Bench

But wouldn’t this rationale exclusively be

35


Q & A: PRO BONO CONFERENCE 2013

Q & A: Barriers to Justice Justice isn’t as easily accessible in The Lucky Country as we would hope. But don’t just take our word for it; hear it SESSION 1:

straight from the speakers at the National Access to Justice and Pro Bono Conference 2013. Luton White reports.

Moderator: Mr David Canales (representative, Student Organising Committee)

Question: When is pro bono work most

Speakers:

effective and when is it least effective?

Ms Julie O’Brien – Australian Human Rights Commission

John: Pro bono needs to be…(targeted) at unmet

Ms Louisa Fitz-Gerald – Cancer Council of Australia

needs. This is difficult as firms that offer pro bono may seek

Ms Jill Prior – Victorian Aboriginal Legal Service

easy discrete pieces of work that are manageable. It might

Mr John Corker – National Pro Bono Resource Centre

be better that they take on something more difficult.

Ms Katherine Francis – Victorian Government Solicitor’s Office

Louisa: There are different contributions to be made by different parts of the legal profession. Just because there

36

Question: What is the single biggest access to

are commercial imperatives in large law firms does not stop

justice issue facing Australia today?

them from doing good.

Jill: I have always thought of access to justice as an unusual notion. It is really about intercepting in people’s lives all of the other

Question: What recent legislative changes

things that are going wrong for them before they reach the point

have

where they require access to justice. These people are so disadvantaged that they require housing, mental health treatment, substance abuse treatment, they are suffering intergenerational trauma and these needs must be met first.

created

higher

demand

for

legal

services? Louisa: Sometimes rights based legislation also creates demand so that people can properly exercise their rights. Catherine: Media coverage also drives demand. The media coverage of the DJ’s bullying incident and the focus on the substantial damages claimed created significant

Question: What has been the impact of the recent funding cuts to Victorian Legal Aid?

demand. Conversely the multitude of Acts that operate at

Jill: The state of Legal Aid funding in Victoria is pretty dire.

federal and state levels, and where there is inconsistency

The number of self-represented clients at Magistrates’ Courts [in

and uncertainty between them, actually serves to reduce

Victoria] is increasing and is, to be quite honest, disheartening.

demand as people are so confused as to their rights.

It is particularly problematic regarding decisions as to how to plead, based as it is on the self-represented person’s view of the legal matters. No matter how many times they have been around the block, and they may well have heard their own pleas entered on their behalf previously…it is entirely different making your own pleas and I have seen evidence of the great stress that it causes. At the higher end, (defence) barristers need instructors. The DPP will have instructing solicitors and it needs to be balanced up in order to be fair.

The Full Bench

Photo- Sal Falko

This causes delays in the court process.


Q & A: PRO BONO CONFERENCE 2013

SESSION 2: Moderator: Mr Julian Burnside AO QC Speakers: Ms Katie Wood – Amnesty International Mr Hugh de Krester – Human Rights Law Centre Ms Kristen Hilton – Victoria Legal Aid Mr David Husy – Plan International

Question: What is the benefit to the practitioner of performing pro bono? Kristen: Participating in pro bono work is of benefit to the practitioner. Firstly, it allows you to enhance your skills in a supported and structured environment. Secondly, it enables you to participate in a variety of work that you may not normally see, and finally it creates a greater awareness regarding a particular issue.

Question: What is the single biggest access to justice issue confronting Australia? Hugh: The Government needs to look at the type of representation and the associated cost that the Government retains for its own advice and representation, and what it is prepared to spend on legal representation for its own people. There are two standards of justice in Australia - those with access (who can afford or access Legal Aid) and those without access. Julian: I am reminded of the words of Lord Justice Darling: “The law is open to all, rich and poor, just like the doors of the Savoy Hotel.” Kristen: The Government needs to consider the impact (of its legislative and policy initiatives) on requirements for legal assistance, Where people recognise that they have a legal problem, research suggests that they are more likely to take their legal problems to their GPs or to discuss them with their children’s teacher, rather than go and see a lawyer.

Question: Do we need more Alternative Dispute Resolution mechanisms? Katie: Yes we need more, however even specialist tribunals that are supposed to be non-legal become populated by lawyers and as a consequence become quasi-legal forums. As a consequence these reforms have not been as successful as intended. Hugh: We need to be careful with ADR that it does not lead to worse outcomes, particularly for the vulnerable party. Particularly in Family (law) matters where there is an abusive party…it is to the benefit of the Judge that…(both) parties have properly trained representatives.

The Full Bench

37


DEBATE: SHOULD SEXTING BE CONSIDERED PORNOGRAPHY?

Stop. Hammer time. Debate: Should ‘sexting’ be considered pornography? FOR

AGAINST

By William Leak

By Jessica Xu

‘Sexting’ is the transmission of sexual material via modern

Sexting: the apparently exciting, slightly taboo form of

communication devices.1 When conducted by juveniles,

sexual expression that is shunned by moral indignation and

the practice of sexting highlights ever-changing social

blushing self-consciousness. It is a bit embarrassing if you

norms. It also raises serious jurisprudential considerations

are caught, but is sharing ‘nekkid selfies’ using a phone or

in regards to ‘child pornography’ and a juvenile’s liability

the Internet when underage a form of pornography?

2

Australian law says, most likely, yes. I call bullshit.

under criminal law.

3

Sexting is not strictly a pornographic act. However, the

Anyone who takes and sends, receives or asks for naked

act of juveniles sexting images of themselves (including to

or sexual images of someone is sexting. You are breaching

other juveniles) may be deemed to be child pornography

the realms of child pornography if that someone, including

if the material is sufficiently ‘sexual in context.’

This

yourself, is aged or appears under 18. That means, if

means juveniles sending or receiving sexual images of

you are under 18 and you sext an image of yourself, you

juveniles, including themselves, may be liable under

would be considered a child pornographer and face up

child pornography clauses.

Such application of child

to a maximum imprisonment sentence of 15 years. This

pornography laws – when juveniles sext - can be seen as

leads to the somewhat convoluted result of children being

a step away from the legislative intent of child protection.

prosecuted for exploiting themselves.

4

38

5

However, it is apt to note that judicial discretion has

The issue in contention is not of adults sexualising and

the scope to prevent punishing merely sexually curious

exploiting minors in the form of sexting, or minors publicly

teenagers. For instance, by determining whether the

circulating images without consent, but of minors involved

content of the sext adequately satisfies the ‘sexual context’

in mutually consenting, private sexting. However, if we are

test. Only juveniles with malicious or at least sufficiently

framing minors as unable to legally give the sexual consent

sexual intent or context in the material they sext or receive

that apparently all those over 18 can adequately give, then

are successfully prosecuted and identified as sexual

why should they suffer the same consequences as adults for

offenders.

the same acts?

6

‘Sexting laws’ are intended to prevent the abuse of

The fact of the matter is that pornography laws were

children. The laws also inadvertently protect children from

created to protect minors from adults and to punish the

‘cyber-bullying’ by preventing the viral continuation of a

exploitation of children. Now, the laws that took seed in the

single ‘mistake.’ Whilst in some instances the application

spirit of protecting children from being sexually exploited

of sexting laws have seen juveniles listed in the Sex

have inadvertently condemned them with the threat of

Offender Register, it is worth noting that the courts have

prosecution and devastating social ramifications of being

been consistent in their application and punishment of

registered as a sex offender.

7

teenagers expressing curiosity in other illicit material, such

Although there hasn’t been a wave of prosecutions for minors involved in sexting yet, the severity of potential

as supply of illicit drugs and supply of liquor to minors. Prima facie sexting laws may appear harsh; however,

criminal prosecution and lack of nuances in legislation

they potentially deter sexual offenders, and there are

demonstrates an oversight of our responsibilities to

concessions within the law that allow for judicial decisions

ensure the best interests of children as signatories of the

to be made in line with legislative intent.

Convention of the Rights of a Child. For these rights to be

1 2 3 4 5 6 7

Forde, L., Sexting: the legal implications, Cornwall Stodart Lawyers, 2011.<http:// cornwalls.com.au/sharing-knowledge/legal-updates/sexting-the-legal-implications. aspx> DPP v Eades (2009) NSWSC 1352 per James J at [12]. Crimes Act 1900 (NSW), s 91H. DPP v Eades (2009) NSWSC 1352 per James J at [13]. Crimes Act 1900 (NSW),s 91, s91FB(1) and s91H. Nicole Brady, ‘Sexting’ youths placed on sex offenders register, The Age (2011).<http://www.theage.com.au/victoria/sexting-youths-placed-on-sex-offendersregister-20110723-1hugu.html> Sexting: the legal implications (2011).

safeguarded, pornography laws should be reviewed so that sexting between minors cannot indiscriminately fall in the legal realms of child pornography.

The Full Bench


VERBATIM: LAW SCHOOL OVERHEARD

Verbatim Law School Overheard

Want to read more from ‘Law School

Law School Memes is branching out and featuring new laughs for

Overheard’

their readership with: ‘Law School Overheard.’ Deeming themselves

something hilarious at Uni you want

as the ‘only source into the scandalous hilarity of Uni’s elite’, they

to share? Visit the Law School Memes

are seeking naïve comments from first years to downright hilarious misrepresentations of the law by fifth years.

or

have

you

heard

Facebook page and let them know:

f

https://www.facebook.com/

The Full Bench team thought we’d share some around and throw

LawSchoolMemes

some of our own your way.

Student speaking of criminal

Student

in

constitutional

law tutor: “Honestly though, her

law: “But surely if someone

voice makes all these murders sound

doesn’t actually KNOW about a

pleasant and graceful...she could

law, they can’t be expected to

read a CSI script to me for a bedtime

follow it?”

story.”

Girl in law class: “I just went to Girl 1 in week 13 lecture:

log onto UTS online, but typed in

“Who is that guy?”

Facebook.”

Girl 2: “That’s the lecturer, he’s been lecturing for the like half the

Student: “I mean, he’s a sex

semester.”

offender and his former employers

Girl 1: “Awkward.”

still ‘enthusiastically recommend him for any position’.”

Guy 1: “Hey dude! Isn’t it interesting

Tutor: “I know, talk about a poor

that all the judges of the High Court

choice of words.”

have their first name begin with J except for one with CJ?”

Girl 1: “She asked us to find the

Guy 2: “What you mean?”

case’s ratio...”

Guy 1: “Here” (points to judgment)

Girl 2: “Yeah! I didn’t know we

Guy 2: “J is for Justice fool!”

did math in law!”

Tutor

class

Student in criminal law: “Is

test: “I can see you copying each

it still murder if the person doesn’t

other’s work, I feel OK about that.

die?”

You’re

during

just

going

equity

to

copy

the

wrong answers off each other.”

The Full Bench

39


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2013 The Full Bench Ed 1  

This is the first edition of The Full Bench published in 2013 by the UTS Law Students' Society.

2013 The Full Bench Ed 1  

This is the first edition of The Full Bench published in 2013 by the UTS Law Students' Society.

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