Issuu

my learned friend Bi-Annual, 1st edition, 2014

Content 2014 | Volume 1

12-14

22-23

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16-18

4-5

Editorial/Indigenous Recgonition

8-9

Life as a grad lawyer

10-11

Virgin Australia holdings limited: case note

12-14

Sex in the social world: the freedom that condemns us

Minter ellison media release

16-18

talk aint cheap: social media, defamation and the $105,000 tweet

20-21

Minter ellison media release

22-23

self - driving cars and product liability

24-25

life as a kwm graduate

26-27

the aurora project

28-30

31-33

28-30

feminism double piece

31-33

professional ethics and trust: the duty of confidentiality in the medical profession

34-35

the law of online shopping

King wood & Mallesons: who we are

38-39

Law and all that jazz

nights heartbeat

42-44

operation sovereign borders

why i study law

why law students should immerse themselves in culture

48-51

superman memorandum of advice

34-35

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Editorial 2014 | Volume 1

Welcome! To the first edition of My Learned Friend for 2014! As part of our re-branding from QUOTALS to QUTLS, we have gone for a different look for MLF this year. Most importantly though, MLF is still our main student driven publication for each semester. For this first edition we have a mix of action und comedy. Are you the kind of person who uses facebook or twitter to throw about scandelous allegations aimed at your lifetime antagonist? If you are a law student and not an airheaded celebrity taking potshots at your frenemies to raise your own profile, you probably donâ€™t have the time nor the inclination to bother. But if you are a twitter tyrant or a facebook fiend, take a look at page 16 to find out how much a defamatory tweet may cost you. Perhpas the idea of a self-driving car is more your style? What happens then, when our automotive slaves gain sentience and decide to revolt against their cruel squishy masters? Cruise over to page 22 to find out. There is also a feminism double piece, where two students go head-to-head prose style and discuss their experiences so far in law as women in a male oriented industry. Do you have an opinion on this? If you do we would love to hear it, we could include your response in the next issue! QUTLS resident style guru Shaan Swaris has written a piece on online shopping, we have some original student poetry, and a students experience interning with the Aurora Project; an organisation specialising in all matters of Indigenous and Native Title law. On top of all of this we have more excellent student submissions, and of course the always useful and insightful content from our sponsors, who have been there and done that ten times over. Finally I just wanted to give my personal thanks to all of those students who contributed, this publication is nothing without you. It would be pages and pages of my own terrible, terrible musings. Special thanks to my publications team Amanda, Lindsay, Rex and Sarah (Lindsay and Rex appear in the photo above, the first two from the left). Without your hard work this would not have been possible! If you want to be QUT Law Schools next literary hero, please send us your submissions for the next MLF, to be released during the end of year holidays. Submissions should be no longer than 1000 words unless you want to write a feature, in which case you should contact us first. Feel free to include pictures, otherwise I will put in a stock photo and smug caption for you. Send your Magnum Opus to vp.publications@quotals.com, or feel free to harass me in person if you want to be included in the next MLF. 4

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QUTLS VP Communications, Kane Robinson

Indigenous Recognition and Acknowledgement This s tatement commit s the qut l aw socie t y (qutl s ) to sus tain a ble reconciliation be t w een the Indigenous peoples of aus tr a lia ( a borigina l a nd torres s tr aight isl a nder peoples ) a nd non - indigenous aus tr a lia n people.the s tatement recognises the responsibilit y a s peer s a nd the future gener ation of the profession to pa rticipate ac tiv ely in the redress of disa dva ntage a nd ov ercome pre judice th at indigenous people currently face. Qutl s recognises a nd acknow ledges indigenous aus tr a lia ns a s the tr a dition a l cus todia ns of the l a nd in w hich w e work, liv e a nd s tudy. w e pay respec t to indigenous l aws a nd cus toms th at sus tain their culture, l a nguage, spiritua lit y a nd a ll other a spec t s of life tre a sured by, a nd held sacred to indigenous Aus tr a lia ns. The socia l, politic a l a nd educ ation a l disa dva ntage th at the indigenous currently face is a direc t result of the his tory of colonisation, dispossession, a nd un jus t legisl ation, policies a nd pr ac tices. w e belie v e indigenous austr a lia ns should be a fforded the right s to self - de termin ation a nd equita ble pa rticipation in the communit y a nd the univ er sit y. qutl s is commit ted to r aising the profile a nd awa reness of indigenous austr a lia ns in it s c a pacit y through the educ ation portfolio, through it s equit y a nd socia l jus tice initiativ es, a nd thorough dia logue a nd coll a bor ation with the queensl a nd univ err sit y of technology (QUT ), the facult y of l aw, a nd the oodgeroo unit. the position of indigenous s tudent representativ e wa s introduced for the purpose of recognising the pivotol role indigenous peoples pl ay in the qut a nd wider communit y. a s tudent is elec ted into this position by his or her peer s a nd h a s the dut y of being the contac t for indigenous a nd non indigenous s tudent s a nd s ta ff member s, to facilitate a nd promote dia logue be t w een qutl s, qut, the facult y of l aw a nd the oodgeroo Unit, a nd to be a n a dvoc ate for indigenous right s.

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The Graduate experience

Ffion Whaley I started at Ashurst (or Blake Dawson as it then was) as a summer clerk in January 2012. I then stayed on at the firm as a paralegal one day a week, and commenced as a graduate in February 2013. My time at the firm has given me exposure to three very diverse practice groups and a broad range of challenging and interesting legal work. The partners and lawyers in each of the teams I have worked in have invested a considerable amount of time and effort in me to ensure that I understand the background and strategy for each matter, and how the law in each area works. Ashurst is full of friendly and supportive lawyers, and I have always felt that there are people at the firm that I can seek guidance from about the tricky questions (such as rotation preferences and admission queries!).

until a final resolution can be achieved. Outside of my daily work, I have also gained great satisfaction from being involved in the Brisbane Womenâ€™s Network, which is a network of female lawyers at the firm that aims to strengthen ties between junior and senior female lawyers, provide mentoring opportunities and advocate for the particular challenges faced by women lawyers and women in general. All in all, Ashurst provides young lawyers with the opportunity to work on challenging and diverse legal matters for many of the top Australian and global companies, in a friendly, supportive and socially conscious environment.

I have also greatly valued the opportunity to work on pro bono matters, including participating in the Homeless Personâ€™s Legal Clinic. The Clinic runs a drop-in legal advice service every Tuesday, where homeless and disadvantaged people can drop in to speak to an Ashurst lawyer about their legal issues. We then bring their files back to the office and continue to work on their matters

www.ashurst.com Australia Belgium China France Germany Hong Kong SAR Indonesia (associated office) Italy Japan Papua New Guinea Saudi Arabia Singapore Spain Sweden United Arab Emirates United Kingdom United States of America

A career at King & Wood Mallesons offers you both global and local opportunities, the most interesting work, the best training and all the support you need to become a great lawyer. So, if you’re smart, social and up for a challenge...

IT’S YOUR WORLD With a vision to create a global law firm in Asia and a history of bold innovation, it’s only the beginning for King & Wood Mallesons. Right now, you can become part of this ‘game changer’ for the legal industry – as we deliver a new legal choice and help our clients realise their new world opportunities. For those who don’t know us well, here’s a snapshot of what we offer you today and tomorrow…

Vision To create a global law firm in Asia Team maTes Over 380 partners and 1,800 lawyers (biggest international legal network in Asia) RepuTaTion Over 100 international and Asia-focused awards and 50 top-tier rankings LocaTions Strategically positioned in the world’s growth markets, financial capitals and the home of information technology (21 offices globally and the only international legal network to be head quartered in Asia) cLienTs Global financial and corporate powerhouses to new industry-makers to and all levels of government (some for over 200 years)

life as a gr ad L aw yer Tim Bunker Corrs Chambers Westgarth Graduate Lawyer

Corrs Graduate Tim Bunker talks to QUT about choosing both a life in law and a law firm ”When I was a kid I always wanted to be a policeman who played a trumpet on the side, but that started to take a turn when I was in high school when I did legal studies and became interested in what the law is and how it works. I started off doing an International Studies degree and then transferred into law. I could see there was a connection between the two. I really wanted to work for the DPP and I went along to one of the corporate cocktail nights just out of chance really. Talking to one of the Corrs partners I started to think, this is a really interesting guy and this law firm sounds really interesting. It was meeting people who had similar values, who didn’t want to totally live their life purely to make money, they were interested in the solutions and legal technical issues and they were interested in people outside of the corporate base. Working with people who had similar mind sets and similar values really made me passionate about working at Corrs. Has becoming a lawyer been what you expected? Definitely not. I think university gives you a certain idea of what the law is, with a certain perspective. You look at ‘black letter law’ and that’s how you think it operates: with guys in the back room with barristers’ wigs and then you go and you realise it’s a really interesting and dynamic place and things are constantly changing. I thought when I went into law that it was going to be quite a linear progress starting as a grad just churning out docs and doing discovery. It’s a lot more than that. Working with clients as a junior lawyer is just one exciting part of it. Probably the highlight of my graduate experience is sitting down at a conference with the big wigs of the client, with general counsel and company secretar-

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ies, and going through a range of issues with them. So what matters to you most about work? I think the opportunity to work with some of the best minds in law and getting the chance to learn from them and getting the opportunity to develop law that’s on the front page of the news, that’s happening right now. Being part of a proceeding that you later see in the media or you see the judgment and you see some reference to yourself (which is what happened in my case)- it is such an exciting thing to see. And what matters in life? It’s a combination of friends, family and work. Friends and family is what I enjoy at home in the country and then there’s work on the other side. Also, I suppose part of work is not just the corporate, but also going outside of that and helping other people through pro bono and having that opportunity not to just focus on one set of skills. So variety? Yes, definitely. Encountering a whole bunch of different range of issues and having to adopt a different method of communication, a couple of times a day, because you’re dealing with different types of people. Being on the phone to a pro bono client and talking to them about a work and development order, and how we going to try and sort out some fines for them. That’s really exciting, it keeps you guessing and keeps you thinking. So where do you see yourself going? I’ve been loving the fact that in the graduate program, I’ve been working on a whole range of different things and I don’t really know where that’s taking me. I like the fact that there’s a whole diverse range of things that I’ve become interested in and it’s pretty cool. Partners and senior lawyers are really engaged in trying to give you interesting work. Stuff that appeals to you. If you come to them with an issue and say, “hey I think this

The sentient hat desperately tries to escape its master.

presents an interesting issue, do you mind if I draft an article on this for you to review and publish?”, they really take up on that, they love that sort of initiative. If it is not directly in their area of law, they can say – “yes, there’s a partner who does work like that, you should speak to them.” So you feel your opinion is valued?

Would young Tim approve of grown up Tim? Definitely yes. I would say up until the beginning of this year and starting at Corrs, I probably still wasn’t sure. I had some doubts about whether this was the direction I wanted to take. I think it’s a decision that people shouldn’t just jump into law, you’ve got to develop an interest. Now I’ve got absolutely no regrets and I love what I do.

Yes, definitely. I thought I would have to tone down who I am a bit, but they like your personality, they like those facets of you that makes you who you are and you can contribute to the organisation.

Do you think that Tim the corporate lawyer is true to the teenage Tim?

So who are you?

I think so. I haven’t changed, I’ve just developed a different interest and made that part of who I am and I like that part of me.

I’m still figuring that out, but at the moment I’d like to say I’m a young lawyer who is really interested in progressing my career but also wants to retain a sense of self. Like going out with friends and family and going to the gym.

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Virgin Austr alia Holdings Limited Herbert Smith Freehill s Case note

Herbert Smith Freehills advised Virgin Australia on Asia Pacific’s first US$797.2 million enhanced equipment notes offering

Herbert Smith Freehills has advised Virgin Australia Holdings Limited on its ground-breaking US$797.2 million enhanced equipment note offering, the first of its kind in Asia Pacific. The enhanced equipment notes offering structure is a form of aircraft financing commonly used by U.S. airlines known as enhanced equipment trust certificates (EETC). The deal is backed by an existing fleet of 24 aircraft operated by Virgin Australia. Proceeds will be used to repay existing financing facilities and for general corporate purposes.

Virgin Australia head office, Brisbane

The Herbert Smith Freehills team was jointly led by Sydney-based partner John Angus and Singapore partner Rod Howell. John and Rod were supported by Sydney, Brisbane and Singapore partners including Matthew Fitzgerald, Amanda Wales, Mark Clifton and Siddhartha Sivaramakrishnan and Greenwoods & Freehills director, Andy Hirst. Herbert Smith Freehills’ successful representation on the deal highlights the firm’s regional asset finance capability, EETC product expertise, leading Australian law offering and U.S. securities platform. Rod Howell commented: “Only a handful of firms have experience in bringing to market the enhanced equipment note/certificate structure outside of the US and the ability to combine these with a knowledge and sensitivity of local legal frameworks and conditions.”

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John Angus commented. “We are very proud to have been able to assist key client Virgin Australia in the successful implementation of its ground-breaking Enhanced Equipment Note transaction. The deal provides an important, stable and alternative source of funding for Virgin Australia and the quality of the transaction is evident in the strength of support from investors.” During his first rotation as a graduate in our Brisbane office, Philip Cooper was able to work as part of the team advising Virgin Australia Holdings Limited on this matter.

“Working with colleagues in Brisbane, Sydney and Singapore on Virgin Australia Holdings Limited’s refinancing was a highlight of my Corporate rotation. The transaction, the first of its kind in Australia, also involved a number of other large international law firms and financial advisers. I was able to attend meetings with client’s management team and liaised with external advisers to progress the transaction. I learned an incredible amount and found the experience to be challenging and rewarding” Philip Cooper Solicitor, Brisbane

see

the bigger picture

curiosity to see what others can't

A new perspective Being an exceptional lawyer takes the curiosity to see what others can’t; the ability to cut to the heart of a matter; and the character to push further than others. This is how we bring original perspectives to our clients’ most complex and critical matters. Bring these qualities and we’ll expose you to inspiring people working together towards a new and distinctive vision. We’ll reward your contribution with the responsibilities, challenges and opportunities you’d expect from a leading global law firm. We see a fascinating and exciting future for the business of global law. Do you? herbertsmithfreehills.com/careers

m a g a z i n e n a m e .c o m

Sex in the Social World: The Freedom that Condemns Us Jessic a Pe ter son

You can have it all. And because you can, you should – with not much more than a click of your MacBook keypad. The ability to acquire whatever and however much we want (whenever we want it) is touted as a great freedom of the Western world. This may be true. However when acquisition and consumption become goods in and of themselves, what we think we ‘want’ (be it a soy piccolo from Brew or a pair of Nike Airs from Laced) is not always consistent with what we in fact ‘want’, and that is acquisition itself. In this environment we are always left frustrated, caught in a cycle where we believe more is better though we may not know what it is that we really want more of. Whether we are aware of it or not, this is entrenched in our psyche. This consumptive drive is as much a part of who we are the cougar is to Cru Bar. This psyche is manifest in all areas of modern adolescent life – from our desire to attain the latest smart phone technology (though there may in fact be very little change from model 4s to 5) to our short attention spans with our careers – but no more so than in our sex lives. And in this environment, hook-up culture can flourish. So what is hook-up culture? According to American writer Donna Frietas a sexual interaction is deemed a “hook-up” if it includes some form of sexual intimacy (from kissing to oral, vaginal or anal sex), is brief and apparently lacks any emotional involvement. A study with 30 young adults aged 18 – 25 in Brisbane finds

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Seductive napkin kissing is at an all-time high.

striking analogy with Frietas: hook-up culture thrives in the sex lives of Brisbane adolescents. But does that make us any happier? Apple is rightly a forbidden fruit, for while it has given us so much (think angry birds, words with friends, photobooth) it has taken from us too. This is not just to speak to the cool two thousand dollars or so the average Chermside shopper has had stripped from their wallets over the years, but the seemingly archaic ability to have a cup of coffee on coconut milk (thanks, Primal Pantry)

A couple of bench enthusiasts.

rum, the eyes of like-minded folk meet, mingled with hope and hunger. Sometimes all that is needed is an offer to pay for the pie, a promise of McDonald’ s breakfast drive-thru, or the elegaic “how about it?” for two to meet in union, for sexual triumph to be theirs. This may not necessarily be a bad thing. Frietas suggests casual sex might be appropriate as long as there is an equal exchange of emotion and motive. Apparently, however, this means no emotion at all. According to one Brisbane girl, “whoever tries to turn it into a relationship, [is] the one that gets viewed badly”. Each participant is theoretically there for him or herself, and might not ever know if the other person enjoyed it. Participants care less about maximizing their partner’s pleasure as much as maximizing their own pleasure.

without uploading it on instagram and sharing it with your closest 400 friends. With the advance of technology, young adults expect, and require, immediacy in every aspect of their lives. One Brisbane teen noted, “people have become so highly connected, in an unbelievably fastpaced, online environment, that they will not be able to interact with each other naturally”. The rise of social media also means more superficial interaction, where ‘friends’ are measured according to their broad swaths of Facebook friends and twitter followers rather than in face-to-face, more meaningful interaction. This, set against an increasingly individualistic world, paints a lonely romantic terrain filled with ill-considered sexual forays. One Brissie respondent observed a shift from wanting love and connection to “a wanting of significance… who slept with who and how many, it’s about a measure of climbing social rank”. In this environment, shortterm flings for the sake of sex itself are valued more highly as social capital than more intense, long-term relationships. One needs to look no further than the phenomenon I like to call Pie Face. If you are unfortunate (or fortunate) enough to find yourself by the Ann Street cab line in the early hours of a Sunday morning, when lock out seems but a distant memory, you will have seen it in action. Down and out from the night, with not so much as a dance-floor kiss in Alahambra against their name, these nightlife warriors make their final call to the much-loved baker for a pie and a muffin before heading home. With heels slung between fingers, button-ups stained in

When sex is reduced to an economy of fair trade, hookups exist as social capital. The satisfaction of hooking up is most acutely realised after the physical encounter when the partners can relive it in vivid (often embellished) detail to their friends. Hook-up culture creates the environment where the sex act itself may actually be painful but is still deemed a success because of how it is received socially. Next time you find yourself at the University of Queensland library, cast your ear out over the swell of sexual innovation and eccentricity that apparently abounds, being careful not to look to closely at the ‘how-to’ guides tabbed as favorites on the computers of these pioneers. Hooking up is a practice where communication itself is eschewed as destructive to the success of the activity. The fact that it is a struggle for students to determine, neigh even imagine, what good sex might entail is shocking. One respondent equated casual sex to as familiar and underwhelming as their favourite bowl of cereal. Sex becomes mechanical and procedural, not necessarily someone’s preference or even

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desire.

derwhelmed about sex, and themselves, and their pies.

This is an environment where sex “happens” more than it is chosen, and where people hope only to move “past that level of immaturity” where they feel they need to hook up. In this instance, pleasure is not maximized, pain is not minimized and preferences are not satisfied. Identity is merely problematized. Subjects are apparently left feeling confused, nonchalant and un-

In the case of hook-up culture, it seems participants, while willing, are increasingly being left sexually and emotionally unfulfilled. Liberal ideology may have given us the freedom to sleep around, but that does not necessarily make us happy. Just because we can doesn’t mean we should.

Firm profile About us

Our clients

Areas of legal practice

Ashurst is a leading global law firm. We advise Australian and international corporations, financial institutions and government clients.

We are a full service commercial law firm advising major corporations and government clients across key sectors including financial services, energy and resources, projects and infrastructure.

Our Australian office practises in over 30 different service areas including:

We have 28 offices in 16 countries including associated offices in Jakarta and Jeddah, and a best-friends referral relationship with an Indian law firm. With over 420 partners and 1,700 lawyers, we offer the international insight of a global network combined with local market knowledge and expertise. Our clients can access deep local knowledge and on-the-ground support wherever they do business from people they know and trust. We build teams that are specific to our clients’ needs, combining specialist legal skills, industry experience and regional know-how. We have a track record of successfully managing large and complex multijurisdictional transactions and projects. Our focus is on getting to the heart of our clients’ legal needs and delivering practical, commercial solutions.

Our clients include 73% of the top 100 ASX companies and 93% of Australian companies in the Forbes Global 2000. We have the privilege to advise on some of Australia’s and the world’s largest and most complex deals.

Recognition • Australia’s Best Firm in 14 areas of law – Best Lawyers Australia, 2012 • Band 1 in 15 areas of law – Chambers Regional Directories, 2013 • 285 lawyers recognised as leading individuals – Chambers Regional Directories, 2013 • Australian Deal of the Year – ALB Australasian Law Awards 2012

• • • • • • • • • • • • • • • • • •

Banking & Finance Commercial Property Competition Construction & Infrastructure Corporate Dispute Resolution Employment Energy & Resources Environment Government Hotels, Leisure & Gaming Intellectual Property Mergers & Acquisitions Native Title Project Finance Restructuring & Insolvency Tax Technology, Media & Telecommunications

What we look for To achieve our vision of being one of a small number of Global Elite law firms, we need ambitious people delivering quality solutions for our clients. The key to our success is lawyers who continually develop their skills and their careers, with a commitment to quality, the highest professional standards and a collaborative mind-set. Australia Belgium China France Germany Hong Kong SAR Indonesia (associated office) Italy Japan Papua New Guinea Saudi Arabia Singapore Spain Sweden United Arab Emirates United Kingdom United States of America

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www.ashurst.com/graduates

Media release Port of Ne wc a s tle le a se indic ativ e of rising wav e of interes t – Now is the right time to bring a sse t s to m a rke t to unlock “l a z y” c a pita l

Minter Ellison - May 19 2014 Leading Australian law firm Minter Ellison has predicted more infrastructure deals across Australia along the lines of the successful leasing of the Port of Newcastle by the NSW Government. The firm advised the Government of New South Wales on the A$1.75 billion transaction, which saw a pairing of Hastings Funds Management and China Merchants Group pay 27 times forecast 2013-14 financial year earnings for the asset after a highly competitive bidding process. Head of Infrastructure, partner Andrew Rentoul, who led Minter Ellison’s advisory team along with M&A partner Costas Condoleon and Major Projects partner Virginia Briggs, said Australia is seeing a growing wave of investment by international and domestic pension and sovereign funds in both existing and greenfields infrastructure projects. “The Port of Newcastle outcome confirms the very strong demand for quality assets in the infrastructure sector, and there will be more deals to come. Australia is a very attractive destination for funds and operators, with quality assets, a stable economy, proximity to Asia and low sovereign risk,” Mr Rentoul said. Minter Ellison also advised the New South Wales Government on the landmark leases of Port Botany and Port Kembla in 2013, with proceeds of A$5.07 billion. At the time, the NSW Ports Consortium paid an extraordinary 25 x EBITDA in a market still affected by global post-GFC uncertainty. Proceeds were earmarked for the Government’s Restart NSW fund, to pay for new infrastructure in the State. According to Mr Rentoul, apart from the stellar price, a significant feature of the Newcastle transaction was that the NSW Government achieved its preferred allocation of responsibility for the future operation and development of the Port. “This is an important benchmark for governments across Australia considering recycling capital into new projects,” Mr Rentoul said. With Australia’s infrastructure deficit estimated at A$770 billion, Mr Rentoul believes that now is the right time for governments to bring assets to market to unlock “lazy” capital to deliver new infrastructure projects that provide opportunities for growth, jobs and economic development. “Across Australia there is store of high quality infrastructure assets that will be very attractive to investors including roads, rail, ports and electricity assets,” he said. “Recently we’ve seen Transurban’s purchase of Queensland Motorways (A$7 billion) and Caisse de Depot et Placement du Quebec’s purchase of a 26% stake in Port of Brisbane (reported to be A$1.4 billion) as well as the leasing of Port Botany and Port Kembla. “The market speculation is that governments may seek electoral mandates to transact assets including the Queensland Ports of Gladstone and Townsville, Port of Melbourne, port and water assets in Western Australia and the “jewels in the Crown”, the electricity transmission and distribution assets in NSW and Queensland. “Industry sources value the NSW poles and wires business alone at in excess of A$30 billion,” Mr Rentoul said. “That would pay for a lot of new hospitals, schools and roads”. .

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Talk Ainâ€™t Cheap: Social Media, Defamation and the $105,000 Tweet thompson geer C a se note

Defamation is usually the last thing on a personâ€™s mind when taking to the Twittersphere to unleash their daily vent of frustrations. However, with the internet making a potential media magnate out of every person with a smartphone or computer, it may be time for us to stop and think before firing off our next seemingly innocuous tweet.

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Mickle v Farley Mickle v Farley appears to be the first defamation case in Australia involving Twitter to proceed to judgment and serves as a timely reminder to all Twitter users of the legal risks associated with social media use. In a decision handed down late last year, Justice Elkaim ordered former student Andrew Farley to pay $105,000 in damages plus costs for making false allegations on Twitter and Facebook about Christine Mickle – a music teacher who taught at his former high school in regional Orange, New South Wales.

According to Justice Elkaim, ‘the effect of the publication was devastating’ for Ms Mickle who had established a widespread reputation for herself in the country area regarding her capacity as a teacher and who had been ‘terribly hurt’ by the suggestion that she may have been responsible for any harm to or ill health of the defendant’s father. The devastation felt by Ms Mickle was further evidenced by the fact that she immediately took sick leave following the defendant’s comments and only returned to work last year on a limited basis.

The defamatory comments were posted in November 2012 and appeared to be motivated by an unsubstantiated belief held by Mr Farley that Ms Mickle had played a role in his father’s exodus as Head of Music and Arts at the high school in 2008. Mr Farley who was 20 at the time of the proceedings, graduated in 2011 and had never been taught by the plaintiff.

Despite the offending Tweets and Facebook posts being withdrawn within a couple of weeks of publication and an unequivocal apology by Mr Farley, Justice Elkaim made a finding in favour of the plaintiff and awarded Ms Mickle compensatory damages in the hefty sum of $85,000. In making this award, His Honour took into account the nature of defamatory publications on social-

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Award of Damages: The Break Down media, stressing that: “When defamatory publications are made on social media it is common knowledge that they spread… Their evil lies in the grapevine effect that stems from the use of this type of communication.” Furthermore, His Honour found that Mr Farley’s conduct in response to the case justified the addition of $20,000 in aggravated damages. This was due to the fact that: • Mr Farley had deliberately disregarded a letter sent by Ms Mickle’s lawyers shortly after the defamatory posts were made; • His seemingly sincere apology was manifestly contradicted by his attempts to argue the defence of truth. With respect to this second point, His Honour stated: “The defence of truth when it is spurious is particularly hurtful to a person who has been the subject of such unsubstantiated allegations”;

The word “hashtag” has now been added to the Oxford English Dictionary thanks to its widespread use as a social media term.

• When the defence of truth fell over, the defendant baselessly alleged the defence of qualified privilege; and

meantime tweet responsibly readers – who knows, your reckless tweet may be the most costly 140 characters of your life.

• Mr Farley seemed to have abandoned his interest in the proceedings and did not appear at trial.

Lessons Learned This case serves as a warning to all social media users that even the simple tweet can prove to have perilous and costly consequences for the imprudent. The fact that Courts are taking into account the nature of social media when assessing damages for defamation further emphasises the necessity that Twitter users exercise caution before hitting that ‘tweet’ button -– bearing in mind that tweets can be retweeted by followers and found on online searches, extending the potential reach of each publication.

In text references removed, but are in order of appearance. [1] [2013] NSWDC 295 (29 November 2013). [2] Micheala Whitburn, The tweet that cost $105,000 (4 March 2014) The Sydney Morning Herald. [3] Ibid. [4] David Rolph, Teacher defamation highlights social media’s legal

Mickle v Farley is also a reminder for those accused of defamation to think twice before attempting to argue the defence of truth, given that doing so has the potential to significantly raise amount of aggravated damages awarded if the defence is found to be raised spuriously.

perils (7 March 2014) The Conversation. [5] For example, Liberal pollsters Mark Texton and Lynton Crosby’s Federal Court case against former Federal Labor MP Mike Kelly. To read more, see Mike Seccombe, ‘Is the Best Defence a Bigger Offence’ (18 December 2013) The Global Mail [6] For more information on the impact of social media on defamation, please see Samantha Mc Hugh, ‘Recent Developments involving

With more Twitter based defamation claims already at the pre-litigation phase, it will be interesting to see how this area of law unfolds in the coming years. In the

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Twitter: practical implications for lawyers’ (2014) 17(1) Internet Law Bulletin 8; David Rolph, ‘Defamation by social media’(2013) Precedent (Sydney, N.S.W), No 117, July/August 2013: 16-21.

Ashurst Insolvency and restructuring My first job as an insolvency lawyer was working on the collapse of Ansett Airlines, which led to the appointment of external administrators to the company. As a junior lawyer, I was thrown into a large team faced with the incredible challenge of sorting out one of the largest corporate collapses in Australia’s history. There were planes to sell, claims to investigate (and in many cases litigate), and thousands of stakeholders to consider. (More importantly, I made it onto the news when mistaken for an out of work air hostess at a creditors’ meeting.) Since then, my rise to fame has halted, but the intellectual challenges remain. I have been involved in finding solutions for a vast range of businesses suffering distress – from airlines, to mining companies, to movie studios and telecommunications companies. In the insolvency context, external administrators are often abruptly handed the reins of a failing business and have to hit the ground running. This invariably throws up a number of complex legal issues as creditors scramble to recoup their losses, and a raft of litigation to navigate competing claims and actions arising out of the demise of the company. I have also had the opportunity to work in London during the global financial crisis, focusing on restructuring companies through revised debt and equity structures that enabled them to continue trading. During this time, I also worked with creditors affected by the collapse of Lehman (this time successfully avoiding the creditors’ meeting news crew), and spent a year in the US learning about the unique court based solutions offered there (and the fiery American approach to legal practice). A highlight was advising key stakeholders on the lender acquisition of MGM Studios, effected through US bankruptcy proceedings. A key challenge for an insolvency and restructuring lawyer is often the sheer number of stakeholders facing substantial loses. In the midst of the global financial crisis, I worked on the restructure of an international group based in the UK. This was a fundamentally decent business with too much debt. The solution here (as in many cases) was for the lenders to swap a large portion of their debt in return for ownership of the group. Easier said than done, of course – I spent almost nine months negotiating and cajoling stakeholders into the compromises, putting in place a number of interlinking contracts and court processes to drag non-consenting stakeholders into the process, and coordinating lawyers throughout the world to put the new financing structure in place.

Because an insolvency practice is organised based on a type of problem that can affect any type of business, variety is a key feature of insolvency work. As well as working across a broad range of industries, insolvency lawyers also need to be across a broad range of possible solutions. In some cases, it is a matter of advising directors navigating through a period of financial uncertainty. In others, a substantial restructure of a company’s balance sheet is required so that it can continue trading. And in some cases, the problems are terminal and formal proceedings will be required to realise the company’s assets and distribute the proceeds to out- of- the-money creditors. The breadth of possible solutions means that insolvency and restructuring lawyers gain exposure and develop skills in all three of the key tenements of legal practice, namely, advice work, litigations and commercial negotiation and drafting. It is critical to Ashurst’s top tier restructuring practice that we are able to help clients explore the full gamut of consensual and formal (or court based) insolvency solutions. Banksia provides a good example. Working with the Receivers of Banksia Securities Limited since 2012, Ashurst’s insolvency and restructuring team has put in place a bespoke contractual framework to enable the group to function through the wind down of its operations, we have advised on the sale of two substantial portfolios of loans owned by the Banksia group (one effected with court sanction), and we have conducted public examinations of key people involved with Banksia in order to determine the genesis of the Company’s collapse and potential claims that the company may have. The ultimate goal is to maximise the recoveries for the thousands of debenture holders throughout Australia that were owed hundreds of millions of dollars when Banksia collapsed. Insolvency and restructuring would be a good fit for law graduates who enjoy dealing with bespoke situations and going back to first principles to resolve difficult problems, and for those who are looking for exposure to a mix of advice work, commercial negotiation and drafting, and litigation. Alice Morrison Senior Associate, Ashurst

Australia Belgium China France Germany Hong Kong SAR Indonesia (associated office) Italy Japan Papua New Guinea Saudi Arabia Singapore Spain Sweden United Arab Emirates United Kingdom United States of America

www.ashurst.com/graduates

Minter ellison About Minter Ellison Minter Ellison is an Australian-based international law firm offering a full range of legal services to an impressive list of clients across Australia, in Asia and globally. Recognised for our clear thinking, our strong technical skills and ability to deliver practical solutions have led to our involvement in the Asia Pacific’s most innovative and highprofile transactions. We work on significant cross-border transactions, projects and disputes, in particular in the energy and resources, financial services and infrastructure sectors. Our services are structured around core global practice areas and industry sectors. Our people are the best and work with the best, delivering practical solutions that assist clients to achieve their business objectives. Number of lawyers/partners

Office locations

200+ partners and more than 890 legal staff (a total workforce of more than 1800 people).

Adelaide, Auckland, Beijing, Brisbane, Canberra, Darwin, Hong Kong, Gold Coast, London, Melbourne, New Zealand, Perth, Shanghai, Sydney, Ulaanbaatar and Wellington.

Minter Ellison have 195 Legal Professionals within their Brisbane office. (Soruce andzzz, Flickr)

Global industry sectors

Minter Ellison’s headline transactions

• Energy & resources

• Global M&A Deal of the Year: Australia (The American Lawyer’s 2013 Global Legal Awards)

• Financial services & insurance • Government

• Australian Deal of the Year (2013 Australasian Law Awards)

• Health & ageing

• M&A Deal of the Year (2013 Australasian Law Awards)

• Infrastructure

• Insolvency & Restructuring Deal of the Year (2013 Australasian Law Awards)

• Telecoms, media & technology

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Other recent accolades for Minter Ellison • M&A Law Firm of the Year: Hong Kong (Acquisition International 2013 M&A Awards) • Tax Law Firm of the Year: Australia (Acquisition International 2013 M&A Awards) • Insurance Firm of the Year 2012 and 2013 (Australian Banking & Finance Awards) Minter Ellison’s leading lawyers 191 individuals across 61 practice areas recognised in Best Lawyers: Australia 2014. [Best Lawyers recognises lawyers regarded by their peers as leaders in their area of practice.] 15 singled out by Best Lawyers: Australia 2014 as “Lawyer of the Year” in their specialist area in their local jurisdiction: • Geoff Carter Melbourne Regulatory Practice “Lawyer of the Year.” • Costas Condoleon Sydney Commercial Law “Lawyer of the Year.” • Andrew Cunningham Sydney Labour and Employment Law “Lawyer of the Year.” • Kristy Edser Sydney Employee Benefits Law “Lawyer of the Year.” • Shane Evans Brisbane Health & Aged Care Law “Lawyer of the Year.” • Michael Harrison Sydney Natural Resources Law “Lawyer of the Year.” • Robin Lyons Brisbane Retirement Villages & Senior Living Law “Lawyer of the Year.” • Pamela Madafiglio Sydney Professional Malpractice Litigation “Lawyer of the Year.” • Alice McCormick Canberra Health & Aged Care Law “Lawyer of the Year.” • David McElhone Sydney Retirement Villages & Senior Living Law “Lawyer of the Year.”

• William Thompson Brisbane Tax Law “Lawyer of the Year.” • Debra Tippett Canberra Telecommunications Law “Lawyer of the Year.” • Paul Wentworth Sydney Oil & Gas Law “Lawyer of the Year.” A day in the life of a Minter Ellison clerk Simon Moses – rotation in Private Equity and Capital Markets - Vacation Clerk 2013/2014 8:00am: Arrive at work. Grab a coffee; check emails for day’s tasks. 8:30am: Meeting with supervising partner – briefing about joint listing on ASX and NZX. New Zealand office needs due diligence report in 3 days; need to research the Trans-Tasman Mutual Recognition Act 1997 (Cth). 10:15am: Associate pops in to give me some good advice on preparing due diligence planning memorandum first draft. 1:00pm: Lunch – off to Australia Square with some of the clerks. 2.00pm: Have to review material contracts – mark up restraints of trade, deferred payment clauses, consents required (and from whom) before sending to client. 3:10pm: Grab a coffee with one of the other clerks to find out how their day is going. 3:20pm: Back to work on New Zealand memorandum. Juggling a few jobs that I need to report on later today. 5:00pm: Meet with lawyer regarding contracts I’ve reviewed. 5:20pm: Prepare report about findings of due diligence review; then walk partner through those findings. 6:15pm: Getting there. Still working on due diligence memorandum. 7.00pm: Pop in to ask an Associate about tasks for tomorrow – they need me to review some lease agreements. Home time!

• Christine Plevey Canberra Insurance Law “Lawyer of the Year.”

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self- driving cars and product liabilit y a le x other- gee

Interest and investment in self-driving cars is continuously increasing and it is easy to see why. Self-driving cars have an undeniable allure. Imagine what you could be doing if you didn’t have to concentrate on the road! Car manufacturers are making all manner of prognostications, seducing the public with the promise of stress-free driving and increased leisure time as you read a newspaper or sleep while the car drives itself. Motor vehicle accidents are the single largest cause of accidental deaths in Australia, claiming 1,193 lives last year. Most of these accidents are due to the unavoidable fact that, although most people are careful, some are not. Driverless cars have the potential to reduce the number and severity of accidents; indeed, the only crashes thus far involving self-driving cars have been when the driver was in control. In fact we have already greatly benefited from semi-autonomous technology, such as anti-lock braking, cruise control and electronic stability control, not to mention recent inventions such as lane assist and parallel parking. However, naturally, as any new, revolutionary, product is developed, legal issues arise and in the case of driverless cars, these issues take the form of product liability.

Smugly leering at pedestrians will soon be easier than ever.

Self-driving cars open up a Pandora’s box of legal problems and, if the technology is to advance beyond the testing stage, legislators will need to determine who is responsible in an accident involving a driverless car. Motor vehicle liability is entirely based on the premise that the operator of said motor vehicle is responsible for its safe conduct. Sure, where failures are caused by faulty equipment, there is recourse to sue the manufacturer. Nevertheless this does not change the basic premise. But what happens when the car is autonomous? What if you aren’t behind the wheel? What if you’re napping in the passenger seat? Playing poker with your friends? Or, because undoubtedly it will happen, having sex in the back seat? Can you really be held responsible if you aren’t in control of the car?

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The laws as currently written would make the operator liable, but these laws have obviously not been written to include self-driving cars and hence not much credence can be given to them. Laws could be rewritten to make manufacturers liable when a car is in autonomous mode. Some proponents of the technology have even suggested manufacturers would gladly accept this liability because there would be so few accidents. Frankly, such an assertion is ludicrous. Automakers, like any product manufacturer, have time and again attempted to eschew responsibility for any damage their products may cause. The only fathomable scenario where an Automaker’s legal department would allow a manufacturer to willingly accept strict liability would be if every member of that department had developed a serious weed habit. So, assuming the entire industry does not decide to play pass the bong, what does it mean for car owners? Well, if legislators determine liability should adhere to the operator, consumers may find the prospect of purchasing a driverless car too risky (imagine a software glitch while driving through the city). Further, it would mean that you would have to be ready to take over at any point the operating system decided to go all ‘Microsoft blue screen of death’ on you. Additionally, because the same traffic laws would apply this would mean no texting, sleeping or yes, fun in the back seat, effectively rendering dead that dream of a stress free trip. It would defeat the whole purpose of buying an autonomous car. Of course there are other liability issues that arise, such as post sale installations and servicing by third parties. Both sub-industries may well become obsolete as manufactures may insist on completing all servicing, particularly if they are liable. However, the key question remains, is it the operator who is responsible or the manufacturer? Allocating strict liability to either party has consequences. Drivers may no longer wish to purchase an autonomous car because it is no longer significantly different from the current experience. Manufacturers may no longer want to produce self-driving cars because of the risk the industry could be sued into bankruptcy. Clearly, there are many legal kinks that must be ironed out before driverless cars are introduced to consumers, but hopefully an appropriate scheme can be adopted to ensure a smooth transition to market.

Googleplex, Google HQ. Google are well known for their driverless car trials, and a few other things.

There are a few additional concerns surrounding the adoption of driverless technology such as: • Insurance. Will an operator’s insurance premiums still be determined by one’s age, good driving etc.? Are these factors now irrelevant in self-driving cars? • Privacy. Will automakers be able to track every place the car has been? Is this a privacy violation? • Criminal liability. Who is responsible if a self-driving car breaks a traffic law? Who is liable if speed limits change and the manufacturer has not updated the operating system? • Hacking. Who is responsible if a hacker takes control of a car? How will police pull over a self-driving car? Self-driving cars promise many benefits but the transition to the technology will require a lot of planning, negotiation and problem solving. Unfortunately we won’t be getting in our Robocop cars anytime soon so legislators have some time to work out an appropriate scheme.

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life as a KWM Graduate A ndre w Medlicot t Graduate, King & Wood Mallesons

Andrew tells us about his exciting and diverse experiences as a King Wood & Mallesons Clerk and then Graduate Lawyer

How did I get the job? I applied for and took part in the King & Wood Mallesons’ Summer Clerkship Program in 2010-11 and was made an offer to take part in the firm’s International Graduate Program. I decided to defer my start date until 2013, so that I could finish my degree and take some time off to travel. When I returned from overseas, the firm arranged for me to clerk on a casual basis until I started as a graduate. What rotations am I doing? King & Wood Mallesons offers their graduates three rotations – each being six months in length. I decided that I wanted to do one “transactional”, one “advisory” and one “litigious” rotation. My thinking was that this would allow me to try not only different commercial areas, but also different practice styles. I have recently finished my first rotation through the firm’s Energy, Resources and Projects team. The best thing about this rotation was that it covered many different practice areas within the same sector – I worked on matters that involved acquisitions, financing, general projects and energy work. This was my main “transactional” rotation. My current rotation is in Banking and Finance: specifically in derivatives and securitisation. These are fairly technical areas and the work is challenging. The team and the nature of the work is what brought me back to this group having clerked in this team since 2011.

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Govenor Phillip Tower, KWM Sydney HQ

This is my “advisory” rotation, although there is still some transactional work.

• acting on a bid for a public private partnership (PPP) project;

My third rotation will be in Dispute Resolution. Most of my legal experience to date has been in litigation and dispute resolution, so I am looking forward to working in an area that I am a little more familiar with. I am hoping that some of the cases that I have worked on as a clerk will still be active when I rotate through the group as a solicitor.

• establishing joint venture arrangements for the construction of infrastructure projects;

What work is involved?

• financing of a privately owned clean-energy asset; and

• providing advice for clients on a range of commercial and financing contracts (includ“I was liaising with management ing derivatives).

and in-house counsel of a listed entity on a daily basis”

The work involved varies from team to team and from matter to matter. I have had the opportunity to do a large amount of contractual drafting and preparing correspondence which is invaluable at this early stage in my career. I have also been involved in some large due diligence processes.

I was fortunate to have regular client contact towards the end of my first rotation. On one deal, I was liaising with management and in-house counsel of a listed entity on a daily basis. On the same deal, I also had the opportunity to speak, and in some cases negotiate, with the lawyers representing the other side. I think it is important to realise that as a graduate, not every single task that you will undertake is going to be exciting – but if you show that you are capable and committed by undertaking the less exciting tasks, opportunities to do the more interesting and challenging work will arise even at the graduate level.

Why pursue a career in commercial law?

Having strong interests in commerce and law, commercial law was the logical first career choice for me. I think the major benefit of starting your career in commercial law is that it provides you with some of the best possible training at the junior level. Whether or not you intend to practice commercial law in the long term, you would be hard pressed to find better legal or commercial training from the ground-up. From day one you are working with lawyers who leaders in their legal field, but also thoroughly understand their clients’ businesses and the markets and industries within which they operate. This is a great footing whether you propose to practice commercial law in the long-term or see yourself working for a company (either as inhouse counsel or in a commercial role). What are my plans for the future?

What kind of experiences have I had so far? I have already worked on a diverse range of matters. Some examples are: • advising on several bids for rights to operate both public and privately owned infrastructure;

I am thoroughly enjoying my graduate rotations at King & Wood Mallesons. At this stage, my plan is to settle into a team at the end of my third rotation and continue to build up my experience and knowledge as a solicitor.

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the auror a project Ta mm y mcconochie A QUT Law Students experience with the Australian Institute of Aboriginal and Torres Straight Islander Studies

Organisation: Australian Institute of Aboriginal and Torres Strait Islander Studies Round: Summer 2013/14 Stream: Legal

Introduction – Aurora project, application process, why I applied I became aware of The Aurora Project (Aurora) while studying Native Title and Indigenous Cultural Heritage law at QUT. Aurora facilitates the placement of student and graduate interns throughout Australian in organisations involved in native title and Indigenous affairs more generally. After reading of the various placement opportunities, and the rich cultural experiences of past legal interns, I decided to apply for a place in the Aurora Native Title Internship Program.

Indigenous Australians have been in Australia for an estimated 50,000 years.

AIATSIS – what they do After successfully completing the interview and selection process, Aurora secured a placement for me at the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) in Canberra. I was required to travel away from home for the 6 week period of the internship. Aurora provided me with assistance in sourcing accommodation, and the process was made much less arduous as a result. My internship was to be in the Native Title Research Unit (NTRU) of AIATSIS, working on the Prescribed Bodies Corporate (PBC) research project. Prior to beginning my placement with AIATSIS, I researched the organisation so as to become familiar with their work. AIATSIS, as it turned out, is the leading research institute in Australia regarding the cultures and lifestyles of Aboriginal and Torres Strait Islander peoples, and holds the world’s largest collections of printed and other resource materials for Aboriginal and Torres Strait Islander Studies. The NTRU monitors the outcomes and developments in the area of native title, and provides independent assessment of the impact of these developments. Where the native title rights and interests of Traditional Owners are recognised by consent or court orders, the Native Title Act 1993 (Cth) re-

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quires a PBC be created, with its members and directors generally being made up of the traditional owners that secured the native title rights and interests. The Prescribed Body Corporate Project of the NTRU at AIATSIS conducts research into the corporate functions of PBCs and facilitates networking and communication between the corporations across Australia.

The Internship – what I did During my internship with AIATSIS, I assisted my project manager and others in the NTRU with various tasks. I transcribed notes from the Western Australia Prescribed Bodies Corporate workshop, and compiled and drafted various sections of the AIATSIS Western Australia Prescribed Bodies Corporate Report. I assisted in the compilation of the AIATSIS Prescribed Bodies Corporate Funding Guides, which bring together information about funding, programs, services and other resources and were developed in response to recommendations from PBCs at national and regional meetings for more information about funding and training opportunities. AIATSIS also publishes a monthly online newsletter entitled ‘What’s New’. This provides a summary of recent significant native title case law, legislative amendments and introductions throughout Australia involving native title or indigenous land rights, training and professional development

National Apology of 2008, witnessing the Sea of Hands installation formed on the grounds of AIATSIS. Findings – what I gained from the experience As a legal intern, I spend the majority of my time reading and analysing case law, and interpreting and applying statutes to factual scenarios. The tangible benefit of conducting research into the functions of PBCs was initially difficult for me to comprehend. Through completing the tasks above during my internship, I became familiar with the corporate realities and struggles facing PBCs. The work I undertook during this time allowed me to comprehend the benefits that the Prescribes Bodies Corporate Project and the NTRU of AIATSIS provides to Traditional Owners. Although I was placed in a research organisation, rather than a purely legal organisation, I have gained practical skills from my time at AIATSIS that can be applied to my legal studies. I have improved my ability to synthesise and interpret data, improved my written communication skills, and have gained a cultural awareness that would not have otherwise been possible without attending events with the people of AIATSIS. Throughout the internship, I was in constant contact with Aurora, who had a genuine interest in my placement experience, and how I was handling the experience both in terms of workload and emotional impact. I would recommend that those who have a genuine interest in the areas of social justice and Indigenous affairs apply for the opportunity to participate in the program, as you will have the opportunity to experience far more than just practical legal experience. Applications for a placement via the Aurora Internship Program are open every year in March and August via their website at auroraproject.com.au Applications for the summer 2014/15 round will be open on-line via the website from 4th through 29th August.

opportunities and native title determination updates. I also assisted the research, drafting and compilation of the monthly editions published during my time with AIATSIS. In addition to these tasks, I also attended various events within AIATSIS. Most significantly, I attended AIATSIS’ commemorative event of the

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Feminism Please stand up & Feminism please sit down t wo a non y mous L aw S tudent s

The two stories below were submitted to be included together as one artilce. If you have an opinion on this, we would love to hear it.

Feminists Please Stand Up Writing this article I hear a collective groan from my peers (even a percentage of my female peers) but I will soldier on. A growing number of both law students and the law profession believe that women are no longer marginalised in law, I submit to all my learned and unlearned friends that this is not the case. I submit to the court of humanity that the basis for my arguments is formed on the all-encompassing ‘unconscious bias’ regarding women in the profession. Men cannot and are not the sole cause for this bias, as often women hold it too. Take a moment to think of someone who you consider a successful lawyer, judge or even leader. What characteristics do they possess? I hazard a guess that all of their more enviable attributes could fall within the generic ‘alpha male’ group. Our profession and even our society have not yet come to value the so-called feminine characteristics in a professional context. Until women are valued not for their ability to act like men but for their more innate abilities, the movement toward gender equality and the need for feminism has not yet run its course. For women to be utilised to their full extent in the legal

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‘Rosie the Riveter’ - The fictional hero of the ‘We Can Do It!’ World War II poster, later became part of Feminist Iconography.

Equality summarised in a neat infographic.

are seeing positive changes in this area. As a final note – speaking for myself it would be most welcoming to be able to attend an industry networking event without feeling like I’ve walked into Tattersall’s. The old boys club has continued on for too long and us girls don’t need you to order us a drink or deal with a case. Feminism Please Sit Down

profession the stereotypical qualities we look for in candidates need to be examined. This can only come about by ensuring that women can achieve decision-making positions. As it stands the figures currently are dismal – women represent only 30% of the judiciary in Australia and an even more woeful 23% in top-tier partnerships. With women only forming a minority in decision-making positions it is virtually impossible for the necessary changes to take place. Employers will inevitably hire what is familiar and if those employers continue to be substantially men, then we will continue to see a similar pattern in the next 20 years. Some would argue that the large drop out by women pursuing a family causes this. I submit that the profession has unconsciously allowed them to believe that having a family and a successful career is not possible in the legal profession with its 24/7 mentality. However, we

“It would be most welcoming to be able to attend an industry networking event without feeling like I’ve walked into Tattersall’s

I am a girl who has had the wonderful privilege of studying law in one of the best universities in the country. From my enrolment, to tutorials, to interviews and now to my first foray into legal employment I have never once felt like I was treated poorly because I am a girl. This I attribute entirely to the fact that I have had an army of bra-burning - as well as more placid - feminists walk these halls before me. I acknowledge and am extremely grateful for the work of feminists but, as far as law school is concerned, I believe feminism has done its job: I humbly ask that the self-identifying feminists amongst us take this as compliment and not an insult. By way of example, a few months ago there was a secretarial job opening at a prominent barristers chambers. Myself and another double-X chromosomed friend were both asked for interviews after having spammed our CVs all over Brisbane. For interest’s sake, I figured I may as well waste the barristers’ time by conducting a small-scale social experiment and make them sift through some more potentials. So I asked a few male and female friends to apply

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as well, because: why not make it a competition? Two women and four men applied as a result of my prompting. No points for guessing which two got interviews. This leads me to the widely-held belief epitomised by a male friend’s lament over the fact that he “couldn’t get a secretarial job because no one wants to see [him] in a tight dress.” While said with humour, his sentiments were genuine and well founded: he would look terrible in a dress. But in all seriousness, he is not alone in expressing this sentiment, reflected by many male and female students in the same position; men cannot get secretarial positions because they don’t have the necessary qualifications (read: cleavage). And they are right; I have no doubt that I got an interview due to the fact that I am a girl. And I have absolutely no problem with that. Contrary to all advice (mainly from women) I didn’t wear the apparently obligatory tight skirt and low cut top. Not because I felt an expectation to act in a masculine way but because I don’t feel a need to be overtly feminine. I was not covering up the fact that I’m a girl; I was merely choosing not to flaunt it. And I have accordingly been treated with respect. I was not treated as a girl applying of a job; I was treated as a law student with intellect to offer. And

I got the job with no cleavage to be seen. Girls in law school are now in the enviable position of being able to reap the benefits of outdated and modern customs. Girls may get the roles because of the old fashioned tradition of female secretaries, but the negative effects of these traditions are made redundant by the reality that the overwhelming majority of the framework of old boys and men clubs no-longer subscribe to the archaic views which saw promotions including ‘first dibs’ on the secretary. Instead, we can step into roles on the outdated traditions of the past and enjoy the respect given to women of the present. I personally don’t care if I get a job on account of having two X chromosomes. Because the connections I make and the experience I gain put me ten steps ahead of my male counterparts, regardless of how I got there. To finish I would thank feminism for the enormous opportunities it has given me, but respectfully ask it to take a well-earned rest.

Real people achieving excellence ADELAIDE AUCKLAND BEIJING BRISBANE CANBERRA DARWIN GOLD COAST HONG KONG LONDON MELBOURNE PERTH SHANGHAI SYDNEY ULAANBAATAR WELLINGTON

For more information on vacation clerkships or the Minter Ellison graduate program please go to www.minterellison.com/careers

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Professional Ethics and Trust: The Duty of Confidentiality in the Medical Profession jessic a pe ter son The combination of privilege, autonomy and self-regulation in professions offers possibilities for abuses of power and trust. The issue, from an ethical point of view, is how to prevent these abuses and to offer accounts for professionals to perform work morally. Confidentiality in the context of doctor-patient relationships poses particular concerns for balancing the autonomy of the patient against broader societal concerns. Doctor-patient confidentiality is paramount in the ethical codes of medical practitioners in Australia. Nevertheless, exceptions to the duty of confidentiality may exist in some cases, like sexually transmitted disease. Common-law and statutory obligations offer some guidance in Australia as to the scope and content of the duty of confidentiality. These legal parameters are consistent against a test of reflective equilibrium. The duty of doctor-patient confidentiality is a cornerstone of the preservation of privacy, trust and patient autonomy in the medical profession. As a moral duty, it is ingrained in the Hippocratic oath: “whatever I see or hear, professionally or privately, which ought not to be divulged, I will keep secret and tell no one”. In Australia, this duty is legally reaffirmed in the Australia Medical Association’s Code of Ethics. It requires that a Medical Practitioner maintain your patient’s confidentiality. Exceptions to this must be taken very seriously. They may include where there is a serious risk to the patient or another person, where required by law. Or where there are overwhelming societal interests. In the inevitably murky intersection between ethics, professionalism and legality, the existence of exceptions demand this duty is continually refined. Autonomy demands the self-governance of the patient, and in particular, the means and capacity for the individual to make an informed, self-interested decision. Confidentiality, on the other hand, is the principle of “maintaining the security of information elicited from an individual in the privileged circumstances of a professional relationship”. It relates only to information the patient can “reasonably regard as private”. Therefore a failure to respect the confidentiality of that information undermines the autonomy of the individual concerned. However, in instances of joint consultation, that disclosure may advance a third party’s autonomy but could breach

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another patient’s confidentiality. Here, doctors must mediate their decisions according to legal case work and statutory obligations on the one hand, and their own moral intuitions on the other. The evolution of the duty is effective only insofar as the patient is aware of its refinement and can trust their medical practitioner. Trust is a particular form of reliance, where the doctor’s behavior must meet the patient’s expectations. The trust-relationship does not necessitate a social contract between equals, only that the relationship plays out equally and transparently, with certainty. The requirements of ethical behavior, and more specifically, of the exercise of duty of confidentiality, must be relatively fixed so that patient’s perceptions can be appropriately addressed. New Federal Privacy legislation requires medical practitioners inform patients of how their information will be handled at the time of collection and to whom those results will be disclosed and raised in joint consultation on the consent of the patient. Such steps help to set the parameters of the doctor-patient trust-relationship. The scope and content of the medical practitioner’s duty of care was considered in 2003 in the New South Wales Supreme Court decision of PD v Dr Nicholas Harvey (‘Dr Nicholas Harvey’). In this case, the female complainant contracted Hepatitis B and HIV from her partner. The doctor knew that she was at risk and that her partner had not undertaken appropriate treatment. Nevertheless, he did not disclose this to the complainant in a joint consultation with her partner. It was found that the medical practitioner’s duty is a single and comprehensive duty to “take reasonable care in all circumstances”. This requires proper explanations in authorizing the disclosure of protected information. Failure to do so, as in Dr Nicholas Harvey, will be a negligent exercise of the duty. Legislation establishes a more concrete duty reflective of the risks or safety of patients as well as third parties . It reflects the utilitarianism of health policy. The Public Health Act 1991 sets out the statutory obligation to observe patient confidentiality in the case of AIDS and HIV (7.1). However, it goes on to instruct physicians to undertake “necessary actions to protect public health” (7.2). That being so, it seems that the duty of confidentiality is not strict or par simpliciter, particularly if breaching that duty will protect the public health more broadly. In any case, the duty of confidentiality allows for certain exceptions, where, for example, sexual partners might be a source of health information relevant to the medical care of a patient. Where and when the duty of confidentiality is eclipsed, as in the case of Dr Nicholas Harvey, by the doctor’s statutory obligation to notify the relevant authority of a patient’s failure to comply with follow-up recommendations or disclosure in joint

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consultations, is unclear. Neither the judgement nor the statute specifies principles of a duty to warn a third party, or that disclosure is implied by joint consultation. However, where disclosure is reasonably expected and the risks from failure to do so are reasonably foreseeable, then the doctor has a duty to do so. This conclusion is in line with a test of reflective equilibrium. Classical utilitarianism defines the right action as that with the most utility, where utility is “the greatest good for the greatest number”. John Stuart Mill later refined this concept by demarcating between higher goods, like the metaphysical and intellectual, and lower goods, like the physical and basal. In terms of the duty of confidentiality, where disclosure will maximize pleasure and minimize pain for the greatest number then it is morally preferential. However, Millsian utilitarians might hark to a distinction between the metaphysical good of patient autonomy and confidentiality and the more basal good of the empirical, physical status of the interested parties. That being the case, there is an argument that breaching the duty of confidentiality under any circumstance unjustifiably undermines the doctorpatient relationship, even where the physical wellbeing of others would be advanced. The strength of this argument is dependent on the conception of the role of the medical practitioner and her duties as a professional. Practically and intuitively it seems that this is a duty to treat and heal physically, rather than metaphysically. The utilitarian argument aligns itself with policy considerations and moral intuition. The respect necessary to preserve the autonomy of each patient is expressed by obtaining consent to disclose results. However the duty of confidentiality requires advertence to foreseeable risks in certain situations, like, where there is a joint consultation or in the case of sexually transmitted disease. In some cases of sexually transmitted diseases, doctors may be under a practical obligation to undertake certain investigative precautions on a clinical history of the patient (See, for example. BT V OEI). Nevertheless this does not constitute a duty to warn a third party of reasonably foreseeable risks where there is no joint consultation, but merely to identify those risks. Doctors have a duty of confidentiality in their professional relationship with their patient. This duty is mediated by case law and statutory obligations concerned with the utilitarian protection of greater social goods. Examples of such exceptions are ripe in the case of sexually transmitted disease. The relationship of trust between doctor-patient is fundamental to its efficacy in delivering treatment and protecting the autonomy of individuals.

A US Study has found that the average person will use 50% or more of their total lifetime health expenditure from the age of 65 onwards.

In text references removed, but are in order of appearance. Brien, Andrew. “Professional Ethics and the Culture of Trust”. Journal of Business Ethics 17 (1998): 391 – 409; 391 World Medical Association. 2008. Medical Ethics Manual. 2nd Ed. France: World Medical Association Inc. Chadwick, J. and Mann, W.N, trans. 1950. Hippocratic Writings. New York: Penguin Books. Australian Medical Association. “Code of Ethics”. Australian Medical Association Queensland. 2011. Web. 8 April 2013. Chadwick, J. and Mann, W.N, trans. 1950. Hippocratic Writings. New York: Penguin Books. Stirrat, G.M. and Gill, R. “Autonomy in medical ethics after O’Neill”. Journal of Medical Ethics 31.3 (2005): 127 – 130; 128 Cross, Susan and Sim, Julius. “Confidentiality within physiotherapy: perceptions and attitudes of clinical practitioners”. Journal of Medical Ethics 26.6 (2000): 447 – 453. Gillon, R. “Confidentiality”. British Medical Journal 291 (1985): 1634 – 1636. Baier, Annette. “Trust and Antitrust”. Ethics 96.2 (Jan. 1986): 231 – 260. Australian Medical Association. “Recent HIV/AIDS Case: Confidentiality and Privacy Implications. Australian Medical Association Queensland. 2012. Office of the Australian Privacy Commissioner. “Federal Health Privacy Law and options for Reform”. Australian Government. 2013. Web. 8 April 2013. PD v Dr Nicholas Harvey &1 Ors [2003] NSWSC 487 (Cripps AJ). [18] – [19]) PD v Dr Nicholas Harvey &1 Ors [2003] NSWSC 487 (Cripps AJ). [61]) PD v Dr Nicholas Harvey &1 Ors [2003] NSWSC 487 (Cripps AJ), [77]; AMA, 2012) Bentham, Jeremy. 1776. A Fragment on Government. London: Oxford University Press; Preface [2] Mill, John Stuart. 1863. Utilitarianism. Cambridge: Cambridge University Press; 11 Australian Medical Association. “Recent HIV/AIDS Case: Confidentiality and Privacy Implications. Australian Medical Association Queensland. 2012. Australian Medical Association. “Recent HIV/AIDS Case: Confidentiality and Privacy Implications. Australian Medical Association Queensland. 2012. BT v OEI [1999] NSWSC 1082.

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the l aw of online shopping Sh a a n s wa ris

Australians’ love to shop online, in 2013 76% of us bought something over the internet accounting for 6.6% of total sales against traditional bricks and mortar. Additionally, 45% of these transactions are outside Australia. What does this mean for the applicability of the law in the e-commerce world? Are traditional methods of contract formation adequate for online sales? What happens if something goes wrong? These questions will be attempted to be addressed below.

Contract Formation Most websites follow a similar formula, they list a range of goods on their website by using pictures and a small description, along with photos and the price they are willing to sell it for. This is generally regarded as an invitation to treat as it is directed to one or more persons. The principle of this is that website advertising is no different from a billboard advertisement outside a shop or an advertisement in a newspaper. Such listings will only be offers if the wording of the proposal is serious enough to warrant it being so. This usually does not occur. The subsequent offer is then made by the buyer upon entering in their credit card details and submitting that to the vendor. The contract is then formed when a reasonable person in the position of a party to the transaction takes the transaction as being complete. This may be when the buyer has completed filling out their details necessary to effect the transaction, or, an acceptance email from the vendor confirming that an order has been placed.

Online shopping has grown 46% in Australia between 2011 and 2013. (Justine Parker, ABC News, Dec 2013)

Credit Card Transactions Payment by way of credit card creates three separate contract; between the purchaser and the retailer; the purchaser and the purchaser’s bank; and the purchaser’s bank and the retailer. Where the retailer accepts payment by card, payment by the purchaser means the retailer accepts the card company’s obligation to pay, instead of cash from the purchaser. When payment is accepted by card, no liability remains between the purchaser and retailer. This means that where the buyer has ensured that the transaction will be able to be carried out (ensuring that there is enough money in the account etc.), it becomes the obligation of the bank to carry out the transaction, and the vendor will only be able to bring an action against the bank if payment is not effected without good reason.

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Terms Usually when goods are bought online, the transaction is subject to the vendor’s standard terms and conditions which the buyer has no power to negotiate on. The buyer can only accept by entering into the transaction or reject by not buying the goods. It is well known that almost all buyers do not read the terms and conditions when entering into such online transactions and so a person who knows a contract contains terms will be bound to such terms irrespective of whether the person read the terms. Problems arise when sufficient notice of terms is not given and also where terms are not standard terms. As to what will be deemed sufficient notice is still some source of contention. It will usually be sufficient in Australia if a website notifies the buyer that terms and conditions exist and will apply to the transaction. However, it will always be better if a buyer has to assent to the terms positively by clicking an “I agree” button or ticking a box confirming they have read and agree to the terms. This will be likened to an electronic signature. The terms will not apply where terms are unfair or onerous on one party. The Australian Consumer Law also provides that terms will be void if the term is unfair and the contract is a standard form contract. For a term to be deemed unfair it must be established there is a significant imbalance in the parties’ rights and obligations under the contract, the term is not reasonably necessary to protect the legitimate interests of the party who would be advantaged by the terms and would cause detriment to the consumer. A term is also presumed to not be reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term. This provision also makes it much easier for a consumer to make out that a term is unfair.

Jurisdiction With more than 45% of Australian online shopping activity occurring with parties overseas, it is necessary to look at the applicable law in such transactions. The general rule is that formation of the contract occurs where the acceptance is received. For most consumers, this will be via email in Australia in their relevant State or Territory and that will be the law applicable to the transaction, even where the vendor is not based in Australia.

Remedies Fortunately in Australia, consumers have the Australian Consumer Law at their disposal should a vendor not perform the contract to the level expected by the consumer. The most relevant provisions in an online transaction include, misleading and decep-

Don’t let this predictable stock image fool you. On average men spend more per month shopping online compared to women.

tive conduct, acceptable quality, fit for purpose and correspondence with description. These all allow a consumer to have their transaction refunded or their goods exchanged for an adequate good. These provisions apply to both goods and services. Provisions are also in place where a major failure occurs and damages may also be recovered. Luckily, most reputable websites operate in good faith and consumers do not need to rely on the law to enforce their legal rights. However, in some circumstances the need will undoubtedly arise, but its effectiveness cross-jurisdiction in reality remains to be seen. In such a rapidly evolving era of e-commerce, it is important consumers are aware of their rights online as more and more of us resort to buying goods and services in this way. Of particular importance is the relevant jurisdiction that the transactions operate in, terms and conditions of such transactions and their applicability and the remedies available to the consumer. With such large companies now participating exclusively online, it is fortunate and necessary that good faith remains the underlying trait in such transactions. However the practical enforceability of law in overseas jurisdictions to a rogue or disreputable vendor may be quite limited, especially where goods are not particularly valuable.

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King Wood & Mallesons: Who we are King & Wood Mallesons - Firm Profile King & Wood Mallesons is helping clients across the globe to make smart choices to shape their future success. As a global law firm, over 2,700 lawyers in 30 international offices are cutting through the challenges facing business and providing commercial solutions that are transforming the way legal services are delivered. Our ability to connect emerging opportunities with market leading capability is pushing the frontiers of what can be achieved - connecting Asia to the world, and the world to Asia. And, we want you to be part of this story. Here is a snapshot of what we offer: Vision: to create a global law firm, headquartered in Asia Colleagues: over 550 partners and 2,700 lawyers Reputation: over 100 international and Asia-focused awards and 50 top-tier rankings, the go-to firm for inbound and outbound China investments Locations: strategically positioned in the world’s growth markets and financial capitals with 30 international offices and the only global law firm network to be headquartered in Asia Clients: from global financial and corporate powerhouses to blue-chips, pioneers and decision makers across the globe (some for over 180 years) Details of the Seasonal Clerkship Program We’ve designed a program to help you make the most of your time with us. During your clerkship, you’ll learn: • The day-to-day skills to get you started – taking instructions, meeting with clients, drafting memos and documents, managing your practice and professional relationships. • The core practice teams at King & Wood Mallesons – who they are, what they do, how they’re structured, the clients they work for, and of course, your role within them. • Our culture – working within your team, you’ll be exposed to (and encouraged) to get actively involved in the many activities and events that help create our unique culture. • Our people – you’ll find that people from every part of the business will help you along, sharing their knowledge, and ensuring you have everything you need to fit in, and do well.

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1 Eagle Street

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Brisbane Qld 4000

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law and all that jazz A ndre w C a rdell- Ree* Partner, Thompson Geer

When thrust from study to full-time work, we all struggle to balance the competing calls on our time, and choosing how one spends one’s time can be a real challenge at times. If I can offer you any advice, dear reader, it’s to find the thing that you enjoy most when you’re not at your desk, your “pressure release valve”, and to keep doing it throughout your legal career. For me, when I am not engaged in the art of legal practice, it is music that keeps me ‘sane’. Indeed, in my experience, it is the regular pursuit of your chosen extracurricular activities that lead most directly to the so-called (and dare I say, elusive?) ‘worklife balance’ that helps you survive the vicissitudes of legal practice. What’s more, just having a demonstrable “pressure release valve” may very well cause a potential employer to give a junior practitioner a second look, when hiring.

ing music to help raise funds or awareness, pro bono, for such excellent charitable causes as the Leukaemia Foundation (Light the Night), YoungCare and the launch of MND and me. You will find your area of the law, or perhaps, to borrow from Mr Olivander and JK Rowling, it will find you. You will work hard. These are the things that just happen in a commercial legal practice. The bit that’s missing is the perhaps obvious statement that you can’t be effective in your work, or tolerant or tolerable to your colleagues unless you spend the necessary time away from your desk doing the other things you love, regularly. My message is simple. Work hard, but schedule a little regular time to do the thing that helps to keep you sane.

I’m not talking about a once a year holiday. That won’t do the trick. No-one can save up all of their stress for 11 months and then let it all out once a year over a predetermined 4 week period. No, instead, it’s the regular thing you do. I’ve never been as happy or as easy to work with as I have been over the last few years when I’ve had a piano in the house, where I can sit and thump the keys (well, I am a drummer). I realise that my children singing along will pass, but while it lasts it’s great to hear my 8 year old belting out a slow jazz/blues version of “Cheap Wine” (though his mother does raise her eyebrow at some of the lines…). Sitting behind a drum kit and running like blazes, while people offer encouraging applause has its benefits too. Best of all, in each band I’ve had the privilege of play-

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*Musings prepared for QUT, by Andrew Cardell-Ree, Partner, Thomson Geer. The views expressed are his own, and not necessarily those of Thomson Geer

“Stitched Up Jazz” or the “Soul Practitioners” (well what else do you call a band of partners and barristers?)

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A d ay in t he life of a Min ter Elli Pat Ritc son cler hie – Tw k o w e ek s ec ond m e nt to Ho ng Kon

g, July 2013 My se c o n d d ay in t h e office the visi kicked o ti ng D e ff with a n of th Horriga n a presen e M on as tation f gave a n h Univer ro m i sity Law n s ightful u nderst School. view a b a n d i ng Professo o o u f t g t o h o e i m por d faith r Pacific r ta nce of whe n c o egion. H n d uc t i n a nua nc e highli t h i n gs g ed b g u h s t i ed that ness in to d iffe good fa the Asia rent par i a nd c on t h t i m e e s a , to d if ns d iffe texts. O ferent j rent ne of th consider udges, a e law ye ations n t d iffer r s m a d e o ent ti m w t h a e p ply to r access t point to es elatively o intern m e that a t t h es e s i m o a n ll busin al op p o for a n e rtu nitie esses en xciting s. This joying n ti m e to parad ig ew b e star m shift t i n g Much of a c a re e m a k es r in co tod ay wa m m ercia s spent I receiv l law. co m pleti ed yeste n g r es e a r d a y. r c Partner h for th I w as a l e constr re ga rd i so asked ng a ple uction t to assis of these a d i n gs ask t a Disp tasks h i s s u ute Reso e a a n v d e a r lution s o u rc es e q u ir e d d isclosu of legal m e to lo re issue . Both ok at a infor m at ra nge of ion – so m internat e t h i ng q Lu nch t ional uite new i m e saw m ore cho for m e. clerks a p s t i ck lesso n d so m e ns with lessons Hong Kon my fello in Ca nto g I ho p e w Ho n g K nese. By ong t o t he e nd i hopeful m p r o v e of my ti ly that both. St g o a l sh o m e in a r ti ng fro m a l uld n’t b ow base, e too d i fficult t o achiev e!

Real people achieving excellence

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m a g a z i n e n a m e .c o m www.minterellison.com

Nights Heartbeat Le a h Dugda le Some Sweet Original Poetry

Real beauty is found

Potent in our souls.

When we listen To the night’s heartbeat,

Real beauty is found

And with each breath

In the language of books

It seems more stars are

And the melody of each tome;

Exhaled into the sky;

Imagination running rampant.

Glittering over the sleepy city.

Passages unmask emotions, memories And as each message is passed down,

Real beauty is found

It is a lesson simply learnt.

In the intricacies of Travelling;

Real beauty is found

Of the exotic languages

When you’re flying down the highway

And cultures that are still left

And you’re singing along to

For us to discover and experience.

Songs more enthusiastically than

It is the lilt of accents,

The wind that is whipping your hair,

Breathtaking vistas,

Because real beauty is

And wanderlust stirring

When you feel most alive.

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oper ation sovereign Borders Mich a el Lock wood

It seems that during every Question Time in the House of Representatives the Minister for Immigration and Border Protection, Scott Morrison, finds an excuse to say how many days it has been since the last successful people smuggler found their way to Australia’s shores. The Coalition went to the last election with the promise of ‘stopping the boats’, and there is no doubt that Operation Sovereign Borders has succeeded to that end. But is it good policy?

Scott Morrison, member for Cook, and Minister for Immigration and Boarder Protection. Photo credit: ”Scott Morrison” by Scott Morrison from Australia - Scott Morrison MP, from Wikipedia.

Let’s start by looking at some of the other achievements of Operation Sovereign Borders. Lieutenant General Angus Campbell, who heads Operation Sovereign Borders, points to five related problems arising from people smuggling: • Loss of life at sea associated with the unsafe vessels predominantly used by people smugglers • Exploitation of refugees by people smugglers • Lost opportunities for poorer refugees unable to afford fees charged by people smugglers • Erosion of confidence in the institutions used to manage unregulated migration, managed migration and border security, and •Challenges with maintaining and promoting bilateral and regional relationships strained by irregular migrant flows and counter people smuggling operations.

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As with ‘stopping the boats’, Operation Sovereign Borders has made headway in addressing each of these problems. While the Operation’s ongoing secrecy makes it impossible to know for sure, it seems reasonable to assume that there have been no loss of life from people smuggling to Australia since turning back the boats began – if nothing else that outcome marks a significant achievement. Stopping the boats has doubtlessly re-

duced the numbers of people seeking to purchase passage to Australia, although again it is not known outside the Operation how would be boat people have paid their money only to find themselves either prevented from departure due to arrest by local authorities (presumable acting at least at times with assistance from Australia) or, having departed, sent back when intercepted by Australian assets. Offshore processing of asylum seekers (introduced by the Howard Government) and denial of the right to resettle in Australia (introduced by the Rudd Government) combine to ensure the available refugee settlement places are available for those entering through regulated resettlement schemes. The question of regional relationships remains unsettled and will be touched on later in this article. What then are the down sides? Managed by a professional soldier, Operation Sovereign Borders has many hallmarks of a mili-

tary operation, with Prime Minister Abbot likening it to a war. Secrecy has been paramount, purportedly to avoid valuable information finding its way to people smugglers. Given that people smuggling is an organized crime, it is not clear what information about boat turn backs would not be available to people smugglers, but secrecy has been effective in thwarting Opposition and lobby group criticism. As the Leader of the Opposition has noted, he is “getting more information from Indonesia than from our own Government”. Notably the Prime Minister has likened Opposition and others calls for more information to ‘an idle curiosity’ – a comparison that at least hints of a disregard for informed public debate over this important public issue. The wartime analogy doubtlessly makes good copy for the evening news, but at the cost of transparency and accountability. A lack of accountability by itself might be acceptable if Operation Sovereign Borders wasn’t putting asylum seekers beyond the reach of our system of justice. While purportedly acting in line with codified international obligations, it that may be that direct access to Australia’s domestic law and un-codified international obligations are a bridge too far for asylum seekers acting in line with Article 14 of the Universal Declaration of Human rights: “Everyone has the right to seek and to enjoy in other countries asylum from persecution” (emphasis added). Or perhaps our justice system is that dysfunctional that we can’t trust it with boat people? Either way this should be a subject of ongoing and informed public debate. Informed debate is unlikely to happen in the climate of secrecy engendered by Operation Sovereign Borders, and even less likely to happen when we accept the reality of the large proportion of Muslims fleeing persecution. The likelihood of an informed debate is diminishing as the terms ‘boat people’ and ‘Jihadist’ come increasingly to be used more in the same sentence. That a large number of Muslim refugees are fleeing those whom Australia and our Allies have contested either on the battlefield or in the realm of international relations seems to be lost on us. The comparatively warm welcome extended to Vietnamese refugees who entered Australia in the five years following the first arrivals on the shores of Darwin in April 1976 has not been extended to those fleeing the Taliban. The message this sends to Australian Muslims and our Muslim regional neighbors is self-evident.

Some of the accomodation in the Naru offshore processing facillity in 2012. As of May 2014 there were 1162 asylum seekrs held at Naru. Photo credit “Nauru regional processing facility (7983319037)” by DIAC images, from Wikipedia.

Lieutenant General Campbell raised the question of regional tensions arising from managing unregulated refugee movements. Our policy of ‘turning back the boats’ has sparked criticism from Indonesia, and sensitivity to this may be one of the reasons for secrecy around the extent of boat turn backs. The impact of our policies on Papua New Guinea and Nauru are perhaps more profound. Both nations are aid dependent, have been given economic incentives for offshore processing and are ultimately responsible for the resettling of detainees in their camps. It is likely that a proportion of detainees will resettle within their

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host nation, which raises several policy challenges.

occasion Australian lawyer seeking to volunteer assistance to detainees being denied entry visas. As well, the Firstly there is an air of neo-colonialism in Australia’s Opposition in PNG was given leave in January 2014 to approach to Nauru and PNG – ‘we have a problem that mount a Constitutional challenge against the validty of we want to go away, here you take the MOU governing Manus Island – it’. The similarity with the Mother “There is an air of neo-co- the outcome of that challenge will Country sending its unwanted conbe interesting (and yes, Australia is lonialism in Australia’s victs to the shores of Botany Bay is funding the PNG Government’s leapproach to Nauru and stark. gal expenses for the case).

PNG – ‘we have a prob-

Secondly, and just like the arrival So is Operation Sovereign Borlem that we want to go of convicts in Port Jackson, the imders good policy. The answer is ‘it away, here you take it’. pact on the Indigenous population depend’. Apart from stopping the The similarity with the is problematic. Australia, an affluboats there are some clear benefits Mother Country sending mentioned at the outset of this arent nation, has well developed and its unwanted convicts to ticle. But these benefits come at internationally respected mechanisms in place to facilitate resettle- the shores of Botany Bay is the cost of centralising power in ment and yet we seem to have no the Executive arm of Government, stark.” choice but to place ‘boat people’ in loss of accountability and transparthe too-hard basket. Nauru, with ency, the evasion of Australia’s jusa population of around 100,000 had, at 20 June 2014, tice system and, in the case of Nauru, evasion of rights 1,202 detainees on the island. At some stage those under the domestic legal system. Other costs, includdetainees will need to be resettled, with an unknown ing the poor conditions in the Nauru and Manus Island number to join the 40 or so already temporarily living camps, are too numerous to go into in an article of this in the local community. This resettlement might be brevity. accelerated if detainees had access to Nauru’s justice system, but this is likely to be some way off – Supreme Weigh up the merits of the policy for yourself. Court Justice Eames having resigned following Nauru’s Government cancelling his visa, the nation only magistrate, Peter Law being dismissed, and at least on one

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why i study law S tefa no Ba rbag a llo

Why? It’s a three letter word, but I challenge you to ask yourself the question --- Why do you really study law? Whether you are just starting your degree or even if you are about to graduate, don’t lose sight of the answer to this question. It is too easy to lose momentum throughout the length and intenseness of your law degree, so remembering why you set out to challenge yourself will help you keep focussed and aligned with your career goals. Why? It’s a three letter word, but I challenge you to ask yourself the question --- Why do you really study law? Whether you are just starting your degree or even if you are about to graduate, don’t lose sight of the answer to this question. It is too easy to lose momentum throughout the length and intenseness of your law degree, so remembering why you set out to challenge yourself will help you keep focussed and aligned with your career goals.

know that this degree is time consuming and highpressured, but remember you need not take yourself too seriously otherwise it will all be over before you know it. Law requires you to make a lot of sacrifices, but in the end it is all worth it and you will realise this the further into the degree you progress. We need to remember that a lot of students did not chose law to become a solicitor or a barrister, but for an array of different reasons and industries. It is important we don’t get too hung up on bringing down our competition over a tutorial question slinging match, but rather focus on the analytical and communicative skills that this very degree is helping us to develop.

It is becoming more and more apparent that jobs within the legal industry are harder to come by. The economic climate has resulted in many firms cutting their graduate and summer clerk intakes dramatically, while universities are continually increasing enrolIf you chose to study law because you wanted to be a ments into the degree, resulting in lawyer, then these are the skills fiercely competitive law students, employers want to see in you and “Talk to people around becoming well, even more competiif you chose law because you didn’t you and you will realise get into medicine, then all the tive. Not just in our grades, but our jobs, sport, volunteer services, work that there are lawyers ev- more reason to focus on developing experience, mooting and heaven erywhere; in finance, real these skills that will advance you in forbid, it seems even the clothing estate, marketing, private any industry you decide to pursue (I hear Ralph Lauren shares are dobusiness.... and even jail” later on. Sure, you may fail along ing well as a result). Don’t let any of the way whether it is with grades these forces work against you, just or with job offers, but keep going, keep focussed. because the hard work you put into this degree is a reflection of your work ethic and comIn hindsight, my biggest regret so far in my degree has mitment for your future. been that I lost sight of why I set out do this degree. I lost motivation in my third year of studies and stradWhether you chose to go down the law path or not, law dled with the idea of throwing it all in and studying will provide you with a solid foundation that many emsomething entirely different, which consequently afployers are searching for. I am not saying to stop being fected my approach to study. Why this bothers me now, competitive with your fellow students or to stop chalis because I chose to study law not just to become a lawlenging yourself, but make sure you do have some fun yer, but because I knew that if ever there were a day that along the way, because getting caught up in the trivI wanted to move on, the opportunities that the degree ial matters is something Louis Litt would do, not you. opens up to you are almost endless, if you finish it of There are incredible opportunities awaiting you, even if course. Talk to people around you and you will realise the job market is slowing or the competition is increasthat there are lawyers everywhere; in finance, real esing. Remember why you chose to study this degree and tate, marketing, private business.... and even jail (howdon’t lose sight of it. Even if it seems that everything is ever I suggest you don’t aspire to end up in the latter). working against you, it’s not. If you are lucky enough to have friends outside of the law library studying other degrees, chances are you

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Why L aw Students Should Immerse Themselves in Culture Scot t thompson As your law revue convener, it seems appropriate to discuss the topic of culture amongst law students and the legal profession. Whether it is music, acting or some other form of artwork there has long been a close affiliation between the law and the arts. Retired NSW Supreme Court Justice George Palmer is known to be a musical composer and former High Court Justice Ian Callinan is known to write plays. Many prominent members of the music or film industry have either completed or were studying a law degree including Peter Garrett from Midnight Oil, Lauren Mayberry from CHVRCHES, Actor Gerard Butler (Most of you know him as Leonidas from 300), comedian John Cleese and of course, former Australian Idol judge Mark Holden is now a barrister… Okay, maybe we don’t want to be reminded of that one. So, if you’ve ever thought about picking up a guitar, maybe you should and here are the reasons why. Firstly, playing a musical instrument improves your cognitive and visual perceptions. A study by neurologists and psychologists in the United States found that 8-11 yearolds who had extra-curricular music classes developed higher verbal IQ and visual skills than those with no musical training. It is well known that law encompasses both of these skills so maybe learning Stairway To Heaven might just give you that extra edge to find the ratio in Polyukovich v The Commonwealth. Getting involved in more cultural events will also make you more social. A Finnish study of more than 1000 students who took part in music classes reported higher satisfaction at school in almost every area. This is one area that I can relate to on a personal level. In my first semester of my law degree, I felt like a social pariah. I had few friends and was only friendly with a handful of people in my tutorials. The next year, QUOTALS held the first ever law revue that brought together a ragtag group of actors, singers, dancers and musicians. Thanks to that event, I’ve made some life-long friends that I would probably never

have met otherwise. Most of you shouldn’t need reminding that the legal profession is known as a breeding ground for mental illness and depression. Australian studies have shown that lawyers are two and a half times more likely to suffer from clinical depression than other professionals. One in five barristers and one in three solicitors report depression. A study by British researchers found listening to or playing music increases dopamine levels in the brain. Dopamine is the hormone responsible for making us feel happy. It should go without saying that when you’re studying, you need a break. I am well and truly guilty of burning myself out on the odd occasion by studying too hard. Whenever I’m feeling overburdened and frustrated by study, I go and bash my drums for an hour and I feel so much better. So, what’s the point of my diatribe? Obviously as law revue convener I have a vested interest in encouraging people to embrace their cultural side. While auditions have already been held and the cast for this year’s production have been picked, there is always next year and I would encourage anyone who’s dabbled in acting, singing, dancing or can play a musical instrument to get involved. I’ve met some amazing and talented people in the process and the experience has been character-building. I look forward to seeing you all in the audience in either August or September for the final production. It’ll blow your mind like Gregor ‘The Mountain’ Clegane.

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Memor andum of Advice To: Mr Cl a rk Kent ( a k a K a l- el;Superm a n From: mr re ximillia n w.y.cho Specia l Pr ac tice - superhero division - qut l aw socie t y leg a l service

reximillian cho 1. PRELIMINARY Dear Mr. Kent, Congratulations on your recent successful application for citizenship in Australia and decision to take residence in the sunshine state. I am writing at your request, a memorandum of advice as a basic guide to beginning the next stage of your life in Brisbane, to inform you on how things may differ here from the United States for you, and to advise you on your basic duties, rights and obligations which may arise in everyday life in Queensland; taking your special attributes, competencies, values and dispositions into consideration. Although some things may seem familiar here to your life back in the States, we have compiled a collection of possible issues which may potentially arise, which we hope you find useful and pertinent to your endeavours. If anything is unclear, or if you require further legal assistance in any capacity, please remember that our doors are always open and please don’t hesitate to contact us. Please also remember that your secret is safe with us, and that we are committed to keeping your identities confidential from outside interest. 2. CITIZENSHIP -POLITICS - CONSTITUTIONAL ISSUES As a now recognised citizen, you have sworn an oath of allegiance to the Commonwealth of Australia and are now subject to and under the protection of the Australian Constitution and its Common Law traditions (Similar to the UK, US and Canada). The Australian Government will do its utmost to protect your fundamental rights within its jurisdiction, and to uphold your rights as per the existing domestic laws and any international treaties Australia may be a part of. Your obligations as a citizen of Australia, and contrasting to the system in the US, requires you to compulsorily take part in the State (Queensland) and Federal (Commonwealth, Australia) levels of voting, whenever the relevant elections are held. You may vote at any voting poll available to you listed on the AEC website. A failure to vote may result in a penalty, most likely in the form of a fine. As an adult living in Queensland, you also owe a civic duty to take part in Jury Duty when called upon, to which the members are randomly selected from a random pool of eligible citizens from the electoral roll. You are required to take part in these only when called upon, and if you have no valid claim to excuse yourself from this duty. We have reason to believe that your potential full-time status as a journalist once you secure employment may be a reason sufficient enough to excuse you from serving as a jury member for court procedure purposes. However, your part or full-time commitment to saving humankind may not be advisable to be used as an excuse in the event you wish to keep your true identity a secret, and even if revealed, may not necessarily be a valid due to Australia’s policies on excusal based on previous positions held (former recognised law-enforcement agents are excused, however one must have been under the employment of the State - which is not applicable to you). The penalty for not replying/attending to a notice questionnaire or summons is either a $1,000 fine or imprisonment for up to 2 months. We understand that jail time and other measures of incarceration may not pose an issue to you, but its symbolic nature and your diligent compliance with Australia’s laws would be representative of your commitment to your citizenship, civic duty and love for your country should such penalties be imposed on you (as you have already demonstrated during General Zod’s attempted terraform of Earth a few years ago). It should also be mentioned that there is no ‘right to bear arms’ (weapons) in Australia. This obviously differs quite substantially from the US and though we do suspect that your adversaries may possess weapons illegally in

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confrontations, we do not foresee any real threat as noted by you, unless it is in the form of kryptonite. Kryptonite however, is not considered a weapon under any jurisdiction in Australia currently. 3. TORTS ISSUES Some issues such as common law assault and other issues sometimes overlap as both criminal and tort actions which may arise during your residence in Australia. We advise that you proceed with every caution and care in your daily activities and keep your safety and the safety of others at the back of your mind at all times. The most important point applicable to you in regards to this area of law is that there is no positive duty owed to others around you as a general rule, which means that even if you are in the vicinity of any crimes or misdemeanours being committed, you are not obliged to act to stop the ensuing illegal activity. However, this would not stop you from acting on your own voluntary volition to assist the community member in need - of course such acts of valour are looked favourably upon in Australia. Nevertheless, please keep this in mind, before deciding to commit yourself or any of your alter-egos in any situation which may arise in your daily commutes around the country, as you must act with reasonable care and you may be liable for any injuries caused through recklessness. Also, in some situations, you are required to act, or at least in some way, to assist some persons in danger if you are able. Relevantly, duties of care and a breach of existing duties for established relationships are the cornerstones of negligence Tort actions in Australia. To our knowledge, there is no existing, established or defined duty owed to anyone as a superhero to any individual; however there may be in terms of a law enforcement officer or as an individual proximate to the situation - something that is left to the Courts to interpret. Please consult us if you find yourself in any issues which may involve possible negligence, tort or any other legal matter which you are unsure of. Please also be aware of property damage that you may cause during your engagement in delivering justice to supervillains. We cannot stress this point enough. Although we do understand that such matters may be the last thing to be concerned about in the face of imminent danger, death or the mass-extinction of humankind, some situations may profit from a less destructive application of force. 4. CRIMINAL ISSUES As an individual residing in Queensland, please understand that criminal issues or situations of a criminal nature are dealt with at State level, meaning that Queensland laws are applicable as a general rule. Only in exceptional or more significant circumstances are Federal laws applied to criminal cases. As a general rule, ordinary individuals in Australia are able to act to take the law into their own hands in the form of a â€˜citizenâ€™s arrestâ€™, where unauthorised members of the public have the power to arrest other individuals without warrant if there is a reasonable suspicion of an impending or occurring indictable offence. This is perhaps a way you could deliver justice whilst acting as Clark Kent without having to resort to revealing your identity. However, we must mention that vigilantism is frowned upon in Queensland from the Queensland Police Service (QPS), who although were glad with the assistance a masked vigilante was able to give them through his own actions (Captain Australia - search: Captain Australia on A Current Affair Queensland) however did not condone or encourage such actions. The best course of action in normal situations then (falling short of extra-terrestrial invasions or large-scale assaults on mankind as a whole), would be to call upon the proper authorities such as the QPS, to assist in solving matters as they arise. It is therefore advisable that in the first instance, that you act in your capacity as Clark Kent, before deciding to act as Superman when these situations arise. We leave this interpretation of necessity to you, but please act with caution and care. It is also important to highlight to at this time the potential of your strength and abilities occasioning assault and wounding on individuals. Assault and wounding without consent are obviously illegal in Queensland and Australia similar to the US, and every precaution that you have taken so far should be exercised here as well. We suppose this means however, that you would act as you usually would against malicious villains who threaten the world, by exerting your full strength at those who require such an application of force to subdue. Please note also, that your heat/laser vision can also be considered an instrument able to assault another individual

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under the Queensland Criminal Code upon its use. Concurrently, we should add here that assault may be applied to you by other individuals but never a case of wounding, by virtue of your invulnerability and how wounding is interpreted by the Queensland Courts. A final concern is the level of reasonable/proportionate force applied to villains or minor lawbreakers, where there is a notably more onerous burden on you as a superhuman being to exercise restraint in the use of strength and abilities in certain situations whilst subduing criminals and solving problems. Please act with caution and reasonableness, arising from the demands of the circumstances as necessary. 5. CONTRACTS ISSUES - BUYING THINGS - PROBLEMS IN ENTERING CONTRACTS The most problematic issue that we can foresee arising in terms of purchases and everyday transactions (which can be construed as contracts) which may arise for you is your current situation as identifying as both Superman or Kal-El, and the Earthling disguise; Clark Kent. The foremost issue arising here is the possibility of you entering into contracts unknowingly under a misrepresentation, as well as the practical issue of tracking which contracts may be applicable to whom. Other issues may also include potential parties confusing with whom their transactions were made with, in addition to perhaps your desire to keep your alter-egos hidden in certain situations for the benefit of yourself, individuals or mankind (however, this may also cause issues with regards to what duties you may have owed or how certain contract types are supposed to be resolved). Entire contracts have the potential to be repudiated, rendered inapplicable or forced to be applied based on the nature of representations. We may need to take on any problematic contracts situations for you on a case-by-case basis, primarily due to your disposition and unique situation, so please contact us if there is anything you are unsure of. However, we believe that as a general rule, it is advisable that you try to keep your superhero and alter-egos separate, by way of judging for yourself; which situations require which alter-ego to act. For example, it is advisable in your more Earthly endeavours such as purchasing a home (such as your planned unit in Graceville) or employment contracts with possible employers (TV stations and news networks etc.) limited to your human disguises (Mr. Clark Kent) and to act in your capacity as Superman or Kal-El in situations where the more extraneous use of your powers in the name of justice is warranted (perhaps in a military capacity, should you find it necessary). We understand and applaud you in already taking some of these actions, and please continue to act in this way - but always remember to keep pertinent contracts associated to the required alter-ego based on the applicability of that contract. 6. OTHER POWERS RAISING CONCERNS The only other potential issue that we can foresee arising for you are with the x-ray vision and supersonic hearing ability that you have disclosed to us as part of your arsenal of abilities. X-ray vision and supersonic hearing as you know, can be used in many instances for the health, betterment and well-being of individuals or, as a sensory advantage which can grant you an edge in select situations. However, as far as personal liabilities go, these powers have the potential to bring about certain privacy issues and the unwanted spying of individuals in society. There is no general express right to privacy in Australia, with only a very few cases existing on the subject but with limited precedential value. Therefore, with no real development of law in Australia in this area, you are technically free to do as you please, as it would also be difficult for other parties to prove that you engaged in certain behaviours using your abilities. Society can still, rest assured knowing that such abilities are in the safe hands of an upstanding citizen whose good character would not allow themselves to use abilities in malicious ways for personal gain or for the detriment of others. In sum, there is express right to privacy in Australia, and taking sneaky peaks would not be a legal issue, but it would be morally frowned upon. Finally, with regards to your flight, please keep in mind commercial flights flying out of the Brisbane and Gold Coast International Airports; keep clear of the RAAF (Royal Australian Air Force) defence drills, military zones and please keep in mind that in some instances, you may be trespassing on private property depending on your flight trajectory, and the nature of the property that you may be entering without prior authorisation.

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7. CONCLUSION The current memorandum is a non-exhaustive list of possible foreseeable legal issues which may arise due to your powers, which have been considered on a preliminary basis, and may be expanded upon as issues arise. For the time being, please take the current submission as a general guide to assist you in enjoying your time living in Brisbane, Queensland, Australia and as a collection of things to always consider before making any substantial decisions as either Clark Kent or Kal-El; Superman. We hope the current advice memorandum provided you with the insight you were after when seeking our services, and we wish you all the best in your endeavours. Enjoy your stay in Australia! Please do not hesitate to contact us should you require any assistance. Warm Regards, Reximillian W. Y. Cho Special Practice - Superhero Division of the QUT Law Society Legal Service.

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