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No Refugee Island?

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Barrister: Charles Waterstreet

Verdict: AFACT v iiNet Feature:Fall from Grace of the Fourth Estate Opinion: Long Live Pro Bono Q&A with Matthew Stutsel

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6 _v Y UT FT NL IB R A O T R D E IS II US D L ER AL A IT N N B R R O TE TE IN EX R
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06 | Case Reviews

07 | News

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OPINIONS

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Criminal Laws Prodical Raconteur Virat Nehru

33 | The Mystery of High Court Appointments

James Norton

34 | Once More Into The Breech


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FEATURE ARTICLES

45 | Ask Alex
Alex Malley

10 A Leak in the Chambers


Wikileaks Bid for the Australian Senate
Matthew Budgen

36 | The Right To Silence Under Attack

Sam Murray

38 | Long Live Pro Bono


Justin Abi-Daher

The Plight of Asylum Seekers and the Response from the Australian Government
James Argent

16 No Refugee Island?

The Proposed 45th Referendum to Recognise Indigenous Australians


Rhiannon Edmonds

21 The Path to Recognition

The Call for Greater Regulation of Giants in the Banking Sector


Nick Melas

25 Was HSBC Too Big to Fail?

46 | Coffee With Matthew Stutsel


National Head of State Tax KPMG Patrick Meaney

28 Fall From Grace of the Fourth Estate


The Ever-changing Media Landscape
Virat Nehru

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6 _v Y UT FT NL IB R A O T R D E IS II US D L ER AL A IT N N B R R O TE TE IN EX R
Contributors
Justin Abi-Daher James Argent Nicky Bevitt Matthew Budgen Rhiannon Edmonds Wing Ho Stephen Ke Joseph McDonald Claudia McKeough Patrick Meaney Nick Melas Sam Murray Virat Nehru James Norton Katie Shoemark

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OBITER is a law journal that aims to feature original, accessible and relevant content for our readers. Entirely independent and studentrun, OBITER serves as a truly open platform for discussion by connecting law students with leading academics, public personalities, future employers and their peers across Australia. Our inaugural print issue was successfully launched in September 2012 and subsequently released in four universities across Sydney. Since then, we have welcomed new students onto our team and have worked hard to broaden our readership base, foster greater industry connections and deliver more interactive content online. To our loyal readers who have written in to voice their support for OBITER, we sincerely appreciate your kind words and suggestions. Your feedback encourages us to make this journal even better. On behalf of my team, Id like to thank our sponsors and partners. The publication of this journal would not be possible without your mentoring and contribution. Furthermore, Im appreciative of the time generously given by our two interviewees, Mr Charles Waterstreet and Mr Matt Stutsel. Thank you for sharing your experiences with my team and our readers. In line with our intercollegiate mission, distribution of this second issue will be expanded to cover major universities across Sydney, Canberra and Melbourne. If you would like to join Australias largest independent student-run law journal as a writer, editor, graphics designer, photographer or a campus support team member applications are now open and can be lodged online on our website. William Ma
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Submissions
Or, you may write to us: submissions@obiterjournal.org

To lodge a mobile submission - scan the QR code.

Stephen Ke

Dictum

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Danny Cheon, Sojong Lawyers Not a year since its failed attempt in April, North Korea has once again stirred up the international community by successfully launching a rocket in mid-December. After a full year of the Jong-un Kim regime, what can we expect in 2013? With an ever failing economy, repeated alleged violations of international law and its counterpart (South Korea) electing a president that is expected to continuously close the pathways of conversation (let alone financial support), China is the only state that will prevent North Korea from being left in total isolation. North Koreas only export is its natural resources, of which China is taking the monopoly of. Is it too much of a stretch to think, that our descendents will see a map that shows Chinese borders extending to half of the Korean peninsula?

Eygptian Fate
Emily Scott (LLB II, ANU) Congratulations on an excellent article outlining the ideological barriers that undermine the Egyptian democratic quest. I would encourage anybody who found the last article as fascinating as I did to indulge in some light research into the revolutions that have preceded the Arab Spring. Even the Russian Revolution of 1917 - from which Orwell himself drew inspiration for Animal Farm follows a similar revolutionary formula to what is currently being experienced in Egypt; the disillusionment of the lower classes, internal factional dissent and the compromise of constitutional integrity needed for the greater good of the revolution. For those curious of the Egyptian fate, here lies a chance to experience the pasts illumination of the future.

Left In Total Isolation

Embrace Or Abandon
Soo Choi (LLB IV, USYD) Especially interesting in the article The Facebook Fallacy was Alberts point about the irony of privacy law reform in the context of Facebook. Are we to see people sacrifice their control over their own information, for their enjoyment of prying into other peoples private lives? After all, arguably todays facebook has been reduced to just that--gratification of our own stalker selves, if you will. If the law does not make the intuitive distinction of financial and nonfinancial purposes of gaining access to others privacy, then we may be forced into the choice of protecting our own privacy or abandoning it for the accessibility of others information. To embrace or abandon our stalker nature, that is the question!
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We Are Especially Vulnerable

Patricia Zeait (LLB V, UWS) Australia is especially vulnerable to the consequences of climate change. Frequent natural disasters and diminished air quality capable of causing cancer and other diseases are some of the dire consequences we could face. We are capable of powering the nation with 100% renewable energy sources yet the Government has committed to replace only 20% of the nations energy with renewable resources. Meanwhile, the fossil fuel industry is thriving. Tougher laws on the fossil fuel industry are needed so that the renewable energy industry may grow. Only by doing so can we ensure a prosperous future for the next generations who will be most affected if we fail to mitigate climate change.

Tom Buckingham (LLB V, UWS) When solving legal problems lawyers engage in the process of legal analysis. Legal analysis requires us to follow precedent, to treat like with like and to distinguish cases that are proverbial apples and oranges. In the wake of Sandy Hook, I was alarmed to see would-be lawyers join the chorus of voices calling for a ban on guns in response to the problem of mass-shootings in America. Unfortunately, these calls ignore an integral part of legal analysis. The landmark case District of Columbia v Heller (2008) held that the Second Amendment guarantees an individuals right to possess a firearm. This precedent stands as a giant hurdle to a total gun ban and barring constitutional amendment, an Americans right to bear arms is not likely to be abrogated anytime soon. Opinions on this issue properly informed by legal analysis must remain sensitive to these considerations.

A Giant Hurdle

The only way to stop a bad guy with a gun is a good guy with a gun.
Wayne LaPierre, Executive Vice President of the National Rifle Association, calling for armed security guards in American schools in the wake of the Sandy Hook elementary school massacre.

6 _v Y UT FT NL IB R A O T R D E IS II US D L ER AL A IT N N B R R O TE TE IN EX R
The days of easy globalization are done.
Dear OBITER,
Mark Paul, Executive Lawyer at Bartier Perry the first issue of OBITER. An excellent publicaCongratulations to you and all your colleagues on tion, and with a great future. I was pleased to see the reference to Strong v Woolworths Ltd [2012] in which this firm appeared for the respondent. On its path to the High Court the case earned forward to many more issues of OBITER. HCA 5 in Dictum - a complex case on causation,

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The freedom to offend is an integral component of freedom of speech. There is no right not to be offended.

James Spigelman, ABC chairman and former Chief Justice of the NSW Supreme Court, arguing that the governments proposed consolidation of all federal discrimination laws will detrimentally redraw the line between permissible and unlawful speech..

An anonymous Apple executive commenting on the ever -growing importance of corporate social responsibility in the electronics industry, after companies like Foxconn and Apple pledged themselves to wide-ranging workers rights reforms in 2012.

One wonders how many people who sign up for the 20-day European holiday have read section 74 of the Trade Practices Act before?
Chief Justice French, rejecting an argument that a consumer is more likely to know of a law precluding liability than the existence of an exclusion clause in a contract, in the case of Insight Vacations Pty Ltd (t/as Insight Vacations) v Young [2011] HCATrans 79 (1 April 2011).

There is an element here that history is repeating itself.


Senior Counsel Jeremy Kirk, arguing, on behalf of Joan Maloney in her appeal against her conviction for possessing contraband spirits in a public place on Palm Island in 2008, that alcohol restrictions in the predominantly Aboriginal community breach the Racial Discrimination Act.

Lawlessness in one area may infect other areas.

the sobriquet How hot was the Hot Chip?. I look

Lord Justice Leveson, author of the 2000 page Leveson inquiry into media ethics and law, commenting on how the casual approach with which the established media disregards the law may be breeding a media culture where the average Internet user will not follow media law either.

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Case Reviews
BAINI V THE QUEEN
[2012] HCA 59 The High Court has held that a decision by a trial judge to refuse an application by two alleged blackmail victims to have their cases heard separately amounted to a substantial miscarriage of justice. The court held that evidence concerning both victims should not have been heard together as it allowed for the admission of prejudicial evidence concerning one alleged victim, which would otherwise be inadmissible in a separate trial for the other.

Wing Ho, Joe McDonald & Claudia McKeough

JENNIFER ANNE WINBANK V CASINO CANBERRA LTD [2012] ACTSC 169


The ACT Supreme Court has upheld a casino employees claim for pure mental harm against her employer, Casino Canberra. Following a psychologically traumatic incident at the casino, Ms Winbanks return to work was deemed to have been mishandled after Casino Canberra placed her in conditions similar to those that triggered

News
Katie Shoemark SUPREME COURT OF CANADAS UPHOLDING OF THEIR ANTI-TERROR LAWS
The Supreme Court of Canada has upheld that their controversial anti-terror laws as constitutional, in a unanimous full-bench decision. The ruling ensures that the anti-terror laws passed in December 2001, in the wake of the 9/11 attacks, will not require redrafting as they contain no violation of human rights. Justice Minister Rob Nicholson supports the courts decision, stating that by upholding this sentence, the court has sent a strong message that terrorism will not be treated leniently in Canada.

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[2012] HCA 61

IDAMENEO (NO 123) PTY LTD V DR COLIN GROSS


[2012] NSWCA 423

The NSW Court of Appeal has dismissed Bondi Junction Medical Centres appeal against a finding that they breached their duty of care by failing to keep accurate patient records. After sending a letter to an incorrect address, the medical centre led a patient to incorrectly believe she was not infected with HIV, resulting in the patients partner contracting the disease. Accordingly, the court found that a medical centre owes a duty to its patients sexual partners where the medcal centre keeps clinical records.

TAHIRI V MINISTER FOR IMMIGRATION AND CITIZENSHIP

MANSFIELD V THE QUEEN; KIZON V THE QUEEN [2012] HCA 49


[2012] FCAFC 59 The High Court has held that a person can contravene the prohibitions on insider trading by trading in securities while in possession of inside information as described in the Corporations Act 2001 (Cth) even if that information proves to be false. In this case, the defendants were charged with insider trading after buying shares in a listed company following the disclosure of falsely optimistic assessments of the companys financial performance by its managing director. Upholding the decision of the WA Court of Appeal, the High Court dismissed the argument that a person cannot be guilty of insider trading while in possession of information that is objective false. 6

The High Court has found that the Immigration Minister did not err in refusing a combined application for a refugee visa by the plaintiffs mother and three of her children. The applicants were Afghan citizens living illegally in Pakistan, and the childrens father had been missing since 2003. Under Public Interest Criterion 4015 (PIC4015), it is required that the law of the childrens home country permit their removal or that each person who could lawfully determine where the children were to live consented to the grant of the visa. Rejecting the plaintiffs argument that the Minister incorrectly understood PIC4015, the High Court dismissed the case, holding that Ministers factual conclusions were reasonably open.

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her previous psychological ordeal. Ms Winbanks lawyer has stated that the case illustrates the clear onus on employers to provide a safe workplace for employees who they know to be vulnerable.

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DOMVILLE V STATE OF FLORIDA


NO. 4D12-556 (FLA. 4TH DCA 2012)

CHINAS INTERNET LEGISLATION

A Florida appellate court has disqualified a trial judge from presiding over a case due to his Facebook friendship with the assigned prosecutor. The court held that this Facebook relationship prevented the trial judge from acting impartially and allowed the prosecutor to exert special leverage over the judge. Whilst the decision has little precedential effect outside Florida, the case affirms the controversial stance of the Florida State Judicial Ethics Advisory Committee which prohibits such social networking as it conveys the impression that the lawyer is in a position to influence the judge.

ASHBY V COMMONWEALTH OF AUSTRALIA


(No 4) [2012] FCA 1411

China has imposed further restrictions on Internet usage by its citizens, with new legislation legalising the deletion of online information that contains illicit information, as determined by the Communist Government. This makes it harder for individuals to access international sites which the Government deems politically sensitive. Additionally, the laws require individuals to provide their real names to service providers, even if they continue to post online under pseudonyms. The legislation comes after a series of sexual and financial scandals were broken through Chinas micro-blogging platform, Weibo, leading to the resignations and dismissals of ten officials.

BRITISH GOVERNMENTS BILL TO LEGALISE MARRIAGE EQUALITY

WOMENS RIGHTS MOVEMENT IN INDIA


The death of a female Indian student following her beating and gang rape on a New Delhi bus by six men has provoked a rare national discourse about violence against women. Protests and demonstrations have been carried out in major cities across India, attempting to pressure Prime Minister Monmohan Singhs Government to introduce tougher sanctions for crimes against women. Officials have vowed to help change shameful social attitudes towards women, with the Prime Minister calling on all citizens to make India a demonstrably better and safer place for women to live in.

The British Government has announced its plans to introduce a bill in 2013 legalising same-sex marriage. Same-sex couples have been able to form civil partnerships, which carry the same legal status as marriage, since 2005. This new bill however, will authorise same-sex civil unions, in addition to religious marriages, provided the countrys religious organisations agree. While the Quakers and the Unitarians have already shown support for the bill, the Roman Catholic Church remains Avehemently opposed. According to the Archbishop of Birmingham, Bernard Longley, the Government cannot yet fathom the full consequences of such a bill.

SPIGELMANS ANTI-ALP SPEECH LAWS STANCE


Former Chief Justice of the NSW Supreme Court, James Spigelman, has warned that the Gillard Governments Human Rights and Anti-Discrimination Bill 2012 poses a threat to free speech. Speaking at the Human Rights Day oration for the Australian Human Rights Commission on December 10 2012, Justice Spigelman maintained declaring conduct to be unlawful, because it causes offence, goes too far. Phil Lynch, head of the Human Rights Law Centre, disagrees, emphasising that the Bill is still in its consultation phase and likely to be refined. 7

The Federal Court dismissed a sexual harassment case brought by political advisor, James Ashby, against his former employer, Peter Slipper, who was Speaker of the House of Representatives

until October 2012. Mr Slipper was successful in

his submission that the case was an abuse of the

Courts process under r26.01 of the Federal Court Rules (2011). Justice Rares held that proceedings had been commenced with the predominant Slipper and not to vindicate the legal claim. purpose of launching a political attack against Mr

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AUSUTRALIA
THE

WORLDWIDE

PERCAPITA
AUSUTRALIA IS

DOWNLOADER

..NO.1
IS

THE 6 25%

TH

OF ILLEGAL
DOWNLOADS
OF ALL

TOTAL VOLUME

PLACED COUNTRY FOR

iSPy A Winner
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Nicky Bevitt

VERDICT:

COMPANIES
TOOK ACTION AGAINST iiNet

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In a highly imperfect analogy, the file being shared in the swarm is the treasure, the BitTorrent client is the ship, the .torrent file is the treasure map. The Pirate Bay provides treasure maps free of charge and the tracker is the wise old man that needs to be consulted to understand the treasure map.
FEDERAL COURT OF AUSTRALIA

ILLEGAL SITES
AUSUTRALIA IS THE

CONDUCTED FROM

AUSTRALIA WAS

DOWNLOADING IN

In August 2012, a group of 34 film companies argued before the High Court of Australia that iiNet (a large Australian Internet Service Provider) was liable for copyright infringement because it had authorised its customers to infringe copyright.

6 _v Y UT FT NL IB R A O T R D E IS II US D L ER AL A IT N N B R R O TE TE IN EX R

ILLEGAL SITES

UNOFFICIAL OR

OF NO.1....

USER

WORLDWIDE

The companies argued that iiNet should have taken steps to prevent the infringement by its customers after it received notices from the Australian Federation Against Copyright Theft (AFACT) informing iiNet that its customers were breaching copyright by sharing unlicensed movies on the BitTorrent peer-to-peer network. Though unsuccessful both at first instance in 2008 and in their appeal to the full bench of the Federal Court, given the complexity of arguments involved, the film companies were given leave to appeal to the High Court. The key issue in the litigation was whether or not iiNet had authorised copyright infringement within the meaning of section 101(1) and (1A) of the Copyright Act 1968 (Cth) because it had not acted to stop its customers copyright infringements. A major consideration for the High Court was that iiNet had no direct way to stop customers from using BitTorrent and that the only step it could take to

ual who infringes copyright is difficult, expensive and likely to result in an adverse public image (big multinational sues poor Joe Smith), if the court had held an ISP liable for infringement, it could have changed the landscape upon which the deal with copyright infringements was to battle against internet piracy has raged end its contract with those customers and for years. However, whilst this decision was a prevent Internet access completely. The High Court noted that this would potentially clear win for iiNet, it was by no means a pose a considerable cost to iiNet, including complete victory. The High Court did litigation from its customers. The High Court not rule out the potential for ISPs to also considered that the notices from AFACT face liability in the future and there did not give iiNet sufficient evidence of the remains a possibility that improvements alleged infringements by customers. Finally, to the content of AFACT notices could the Court noted that disregarding infringe- create an obligation to act. It was also ments was not synonymous with authorising suggested that legislation might be more appropriate to deal with the difficulties infringements. Thus, the Court unaniof enforcing copyright on the Internet, mously held that iiNet had not authorised copyright infringements and dismissed the citing examples of legislation in New Zealand and England. appeal. In light of the serious difficulties The ultimate conclusion that can be that copyright owners face when attempting drawn from this case is that ISPs should to sue individuals for copyright infringeand do have some obligation to uphold ment. This decision comes as a great blow copyright, but to the music and film the conditions industry. creating this Given that obligation are undertaking litigation ILLEGAL DOWNLOADS OF VIDEO not yet clear against each individAND MUSIC FILES WERE DETECTED

100,000

DURING A 59-WEEK INVESTIGATION

19 MILLION
ILLEGAL DOWNLOADS OF VIDEO OCCURRED IN AUSTRALIA DURING 2012

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9

in the Chambers
On 13 December 2012, Julian Assange announced to Fairfax Media his intention to make a bid for the Australian Senate in 2013, running on a Wikileaks Party ticket. This brings an end to speculation as to what his next move will be to elude extradition to the US where he faces the death penalty.

a
Matthew Bugden
N A WHITE WALLED, modest cooking room, Julian Assange sits down to a video conference with CNN. He speaks in long, carefully parsed sentences about the clandestine operations of a neoOrwellian global surveillance complex. His tone conjures up the vague mixture of uneasiness and frustration one feels when listening to a person speak about impeding catastrophe in a tone most reserve for their voicemail greeting. Assange has the manner, often mistaken for arrogance, of a man who never has to pause to think before he replies, having spent countless hours memorising, tweaking and inculcating his message to others. Assanges talking points are so polished that whatever imperfections remain one presumes to be intentional to give him verisimilitude, and to help
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the two British police officers permanently stationed outside the embassy courtyard. They serve as a constant reminder of Assanges crimebreaching the terms of his bail by seeking asylum. On 15 August 2012, Ecuadorian foreign minister, Ricardo Patino, announced that Britain had sent a written notice detailing its intention to storm the Ecuadorian embassy unless Ecuador gave up Assange. The next day, Ecuadorian president, Rafael Correa, replied by tacitly accusing the Anglo-Americans of imperialism and making patent appeals to the Organisation of American States for diplomatic support. He also adverted to diplomatic customary law and the Vienna Convention, which provides that agents of the receiving state may not enter diplomatic premises without consent. Carrea warned that Britains actions would create a dangerous precedent, one which threatens the lives of diplomats all over the world. Britain would later retract the threat. President Carrea, at another point in his speech, asked whether there was any consistency to Londons diplomatic policy. He referred to Britains decision to provide asylum for war criminal, Augusto Pinochet, despite him being convicted in his native Chile of human rights abuses. The clear extra-judicial factors that influence any states behaviour make it very difficult to extrapolate hard principles from individual extradition cases; this is especially so since many of Europes extradition cases occurred under a different world system, for example, the analogous case of Hungarian communist, Imre Nagy, a leader that was arrested by the Soviets after leaving his safe house on assurances he would be permitted safe passage to the airport. If Assange is extradited to Sweden on charges of sexual assault, he fears the Swedish government, under intense diplomatic pressure, would give him up to the US. When asked at the Sydney Festival of Dangerous Ideas in 2011 why he is so

Protesters gathered at

a Free Julian Assange rally held on the lawns of the State Library in Melbourne.

It would seem unlikely that Parliament...contemplated a situation where a candidate could be excluded on the basis that he could not re-establish residency due to a serious offence committed in a foreign jurisdiction.

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Photo: Melanie Lazarow

people relate. A stocked bookcase and a closed curtain are the only objects visible in the shot. One assumes even the rooms plain, ascetic dcor is deliberate, a semiotic retort to the British tabloids that portray Assange as a kind of opportunistic freeloader living in one of the most affluent districts of London on a developing countrys dime. Aware that the district represents an odious, Victorian standard of luxury for many of Wikileaks key support groups, enjoyment is hardly a visual Assange wants associated with himself. Visibly worn down and looking much older, Assange hardly seems to be enjoying himself in the Ecuadorian embassy, where he has resided since June 2012one can only assume he is equally dissatisfied with being separated from his wife and two children. His interviewer puts it to Assange that Ecuadors press freedom record is not at all befitting of a champion of free speech. You can see that this comment catches him off guard. He exhales, regathers himself, and tiredly replies that there are Al Jazeera journalists that spent six years in Guantanamo Bay after 9/11, and that certain issues warrant closer attention than Ecuadorian domestic policy. During the interview, Assange has a weak voice and sluggish demeanour, symptoms of a lung infection his doctors say will eventually require treatment outside of the embassy. Since most of the embassys residents are able to seek medical care beyond its walls, the building is neither equipped with the facilities nor the equipment necessary for adequate in-house treatment. But if Assange were to leave the embassy, whether to receive medical treatment or to escape his overzealous interviewer, the only people waiting to transport him would be
12

keen to avoid the US prosecution, Assange pointed out that his trial would be held in Alexandria, Virginia, a city purpose-built to accommodate an enormous Washington, DC workforce. According to Assange, the grand jury to decide whether he receives death by lethal injection would, unavoidably, have ties to the US government or a major defence contractor based in Alexandria. These two institutions have been notably affected by Cablegate, the leaking of over 250,000 government cables with subject matter as diverse as footage of collateral deaths in Afghanistan to unflattering remarks about the appearance of the late North Korean dictator, Kim John Il. Not surprisingly, Assange suspects an Alexandria grand jurys impression of him to be somewhat skewed. It is in this milieu of uncertainty and fear that Assange has decided to run for the Australian Senate, a move of complete and utter desperation. But before he can realise his parliamentary ambitions, however, there are a number of legal requirements he must satisfy.
1. Registration of a Wikileaks Party

Assange has with certain influential personages. When Assange was arrested, it was celebrity donations that paid his 240,000 ($376,000) bail and put him up in a luxury estate during his house arrest. With Assanges connections and iconic status combined, there is no question that the Wikileaks Party will enjoy some measure of popularity. While Assange meets the section 163 citizenship and age requirements of the Commonwealth Electoral Act 1918 (Cth) (the Act), there is no such certainty viz the requirement that a candidate must be either (i) entitled to vote or (ii) qualified to vote. Since there is no case in Australian history with facts even remotely similar to Assanges, this uncertainty is bound to pervade the discourse surrounding his campaign. Anne Twomey, a professor of constitutional law at the University of Sydney, characterised the material requirement as one of legal intention to resume residency within six years. Professor Graeme Orr of the University of Queensland, by contrast, says overseas electors have a three year window in which to exercise their foreign voting rights before they must re-establish residency, which Assange has been unable to do for obvious reasons. It would seem unlikely that Parliament, when drafting the Act, contemplated a situation where a candidate could be excluded on the basis that he could not re-establish residency due to a serious offence committed in a foreign jurisdiction. Nor
13 2. Assanges Eligibility To Run

The procedural requirements for registering a political party under Australian law are not likely to create problems for Assange. Largely pro forma requirements, Assange needs to draft a statement of party principles and objectives, to be subject to judicial review. Likewise, the party should have no problems getting the requisite 500 signatures it needs to register Assange has hinted that a number of prominent Australians have committed to support him in his bid, underscoring the amount of political capital

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Assange speaks from a balcony at the Ecuadorean Embassy in London shortly after being granted asylum in mid-2012. Photo: Carl Gardner

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did Parliament probably contemplate the contingency of that foreign resident, fearing capital punishment for an unrelated offence, finding asylum in a foreign jurisdiction.
3. Constitutional Challenge

After all, the introduction of a rival left-wing populist party, sharing many if not all of the

same views on social justice

and democratic accountability, threatens the significant gains it made in the last election.

Orr identifies a post-election constitutional challenge as a potential issue for Assange. His current arrangements with Ecuador, though nebulous and undefined, could, Orr asserts, be interpreted as a section 44 acknowledgement of allegiance, obedience or adherence to a foreign power. If this argument holds up, it would mean that in
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order for Assange to run on the Wikileaks ticket, he would at some stage have to abandon the Ecuadorian embassy. The alternative is to appoint another member of Wikileaks to represent him in the Senate. However, this issue will not arise unless Assange satisfies both the requirements in the Act and wins his election, neither of which will be an easy feat. Assuming he is found eligible, Assange could choose to run in any state, even if it is not the one in which he is registered. Along with the major announcement of his intent to run, Assange announced that the state he chooses to contest would be a

strategic decision. Despite the ostensible advantages of running in his native Victoria, there is also the fact that New South Wales Greens senator, Lee Rhiannon, is not up for re-election. This is significant since Assanges best chance of victory will be by splitting the Greens vote. According to UMR, the company that handles Labors internal polling, survey data suggests 39 percent of Greens voters are likely to vote for Wikileaks in the next election. The statistics also show that Assange has more support generally in New South Wales than in Victoria, enjoying a 27% and 23% approval rating in the respective states. Crikey columnist, William Bowe, also sees the Greens losing out if a Wikileaks Party is established. The most likely scenario for Assange winning a seat in whichever state he chose to run would thus involve him poaching slightly over half the Greens vote, so as to finish ahead of their candidate and then ride home to a quota when their preferences were distributed, Bowe writes. This puts the Greens in a very difficult position. Will it swap preferences with Labor ahead of Assange as ABC blogger, Antony Green, expects? After all, the introduction of a rival left-wing populist party, sharing many if not all of the same views on social

justice and democratic accountability, threatens the significant gains it made in the last election. What does Assange realistically hope to achieve? If Assange or an appointee thereof won his or her election, Wikileaks would be able to leak government secrets orally in the Senate itself, using parliamentary privilege as a shield. Since the privilege provides that senators cannot be sued or prosecuted for anything they say or do in the course of parliamentary proceedings, neither governments nor individuals would be able to bring further criminal or civil charges against the Wikileaks Party for its statements. Of course, to simply read classified materials verbatim would be stretching the privilege well beyond its intended purpose, but references to nuggets from Wikileaks cables, when they cohere to the issue at hand, would most likely be tolerated. For all the advantages parliamentary privilege could provide Assange, it is a small windfall compared to what Assange wants most out of his bid: a commitment by the Gillard or Abbott government, depending on the federal election results, that it will either grant him asylum in Australia or, more realistically, be more resolute in its efforts

Sam Castro, the founder of the Wikileaks Australia Citizens policies will be received as a breath of fresh air for Australian democracy Alliance, predicts Wikileaks

to ensure that Sweden does not extradite him to the US. Since Australian law does not grant diplomatic immunity to parliamentarians, a win at the polls without asylum would be a Pyhrric victory indeed. The Gillard government has made a

policy of distancing itself from Assange. Its approach is reminiscent of the Howard governments handling of the David Hicks incident, when Howard offered Hicks, a South Australian man who trained with Al-Qaeda in Afghanistan, as tribute to the Pentagon, which then oversaw his conviction on charges of material support of terrorism. Hicks spent the next time he endured torture and humiliation, completely unaided by the Howard government. For Assange, Hicks treatment by the Howard government is a cautionary tale of what happens when you expect to receive diplomatic support on the basis of citizenship alone. Not surprisingly, Hicks has come out in support of Assanges senatorial bid, saying the Gillard governments level of support for Assange does not reflect the views of the Australian people. Implicit in his rhetoric is the charge of a lack of accountability and transparency in Australian politics, something Wikileaks will be keen to emphasise in its party programme. Indeed, Sam Castro, the founder of the Wikileaks Australia Citizens Alliance, predicts Wikileaks policies will be received as a breath of fresh air for Australian democracy, and independent senator, Nick Xenaphon, told 3AW that such a party would be in a position to grill the Gillard government on its failure to reform whistleblower laws as promised in the lead-up to the 2010 federal election. A Wikileaks party, with or without Assange, will be able to present itself as a foil for party politics and a populist lightning rod, though it will probably avoid equating a failure to stand up to the US with un-Australian behaviour, especially considering Assanges post-nationalist worldview. In his statement, Hicks said, it appears Australian citizenship is worthless in the view of the Australian government, Liberal and Labor, and elsewhere, our leaders need to take more pride in being Australian to safe-guard its citizens abroad.

In any case, the material question is not whether a Wikileaks victory at the polls would ensure political asylum for Assange as a legal right clearly it would not. The question, rather, is whether a senatorial bid would increase public support for Assange, and whether, moreover, a finding of ineligibility could be the catalyst that mobilises a populist movement large enough to pressure either the Gillard or Abbott government to change its position on Assange. Indeed, managing director of UMR, John Utting suggests that Assanges first preference votes would increase if Assange were extradited to the US. While he attributes this to the underdog effect, which he suggests is more prominent in Australia than other countries, it might also suggest the Australian public believes that their voting behaviour can influence executive policy, despite the latter being formally unaccountable to the legislature in foreign affairs. The reason Assange is making his bid is because it is the only way for him to make his asylum petition to the Australian public directly, whereas currently the Gillard government is able to keep negotiations behind closed doors. He wants Australians to start talking, and that the language we use be juridical, not sound bites and sophistry. He wants Australians to ask whether a political party should be allowed to exercise its executive power in a way that prevents a rival party leader from even being in the country he is legislating for. At the very least, we should ask ourselves what rights Australian citizens should expect when the key clicks in the lock of our foreign prison cell. Should we expect procedural fairness and the maintenance of the rule of law? Let Assange be the benchmark by which to demarcate our own rights, so that even if his gamble comes to nothing, we will have at least calculated the buying power of Australian citizenship in the postterritorial era.
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James Argent

ISLAND?
As the Federal Parliament rose for the final time in 2012, there was little evidence that genuine steps had been made towards improvng Australias policy towards asylum seekers. The debate surrounding asylum seekers in Parliament and the public sphere is so toxic that resolving the moral and legal issue of Australias immigration policy seems improbable.

NO REFUGEE

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THE EXPERT PANEL ON ASYLUM
Seekers Report was commissioned to address the humanitarian challenge facing Australia. The efficacy of the initial steps taken by the Federal Government to implement some of the recommendations however is questionable and appearsv unlikely to create a program that treats all potential refugees equitably and expeditiously. Australia must fundamentally reconceive its perspective of queue-jumping asylum seekers and appreciate that a robust

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regional solution is crucial to a successful refugee policy. The Expert Panel Report and Federal Government Action The Expert Panels report provides 22 recommendations that aim to provide a solution to the increasing numbers of asylum seekers attempting to reach Australia. Key recommendations include increasing the number of places in Australias Humanitarian Program, engaging with regional

neighbours with whom processing can be shared, disrupting people smuggling operations and introducing a no advantage principle. Although the Expert Panel claims that this principle aims to discourage seaborne asylum seekers undertaking the journey to Australia, its rationale and effect are ill conceived. The Government has sought to introduce the no advantage principle through the Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Bill 2012 (Cth), which now sits before the House of Representatives. The Bill effectively excises the Australian mainland from the Migration Zone to ensure that all maritime arrivals, whether arriving on the mainland or a previously excised area, are treated identically. It raises however, serious questions as to whether the protections afforded to refugees are consistent with Australias international obligations, and harkens back to the failed attempts of the Howard Government in 2006 to introduce an out of sight, out of mind immigration policy setting.
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UK
A bomb explodes during a Shia Muslim rally in Quetta, Afghanistan against the backdrop of a large Australian leaky boat warning billboard. Photo: Iqbal Oruzgani

45,197
USA

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The effects of some of the proposed amendments to the Migration Act 1958 (Cth) are particularly startling. Under the proposed 198AH(2), the Bill effectively removes the protection to which a refugee may be entitled. Under the amendment, a person assessed to be a refugee can continue to be classified as a transitory person. Consequently, all transitory persons whether or not a refugee can be taken to a country determined to be a regional processing country by the Minister for Immigration and Citizenship. Similarly, the exemption of the Ministers powers of review under ss 198AE(1) and 198AE(1A) from rules of natural justice and the apparent bar on legal proceedings relating to the lawfulness of detention under ss 494AA and 494AB albeit a consequential amendment still potentially amenable to judicial review are equally disconcerting. Although these amendments are not unusual in the context of the Migration Act, they indicate that Australia has become accustomed to a policy in which mandatory detention, minisrerial discretion and limitations on commencing judicial proceedings are faits accomplish. The ultimate effect of the Bill is perverse, particularly in light of Australias international obligations. The effect of the no
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38,080

CAN
v

33,970

In 2009, 8,427 people of the

sought asylum in Australia


AUS

people were forcibly displaced worldwide

43,300,000
Numbers of people seeking asylum
and statistics obscure Australias generosity towards refugees and asylum seekers relative to other countries. Although Australia is consistently ranked in the top three countries for official refugee resettlement intake per capita, the burden of total refugees per capita is largely borne by developing countries. On a per capita basis, Australia was ranked 71st in 2011 for resettling refugees. Pakistan, Iran, Syria and Kenya hosted a total of 3,911,100 refugees in 2011; Australia hosted 23,434. The UNHCR estimates that in 2011, the Asia- Pacific region hosted 3.6 million refugees approximately 24 per cent of the global refugee population. Additionally, the majority of the refugees arriving in Australia are from Afghanistan, Pakistan, Iran, Sri Lanka, Iraq, or are stateless. The Expert Panel notes that Australia is a small recipient of irregular migrants and asylum seekers and accounted for only 2.5% of global asylum claims in 2011; the number is further reduced once air arrivals people who are conspicuously exempt from the public debate are removed. Australian politicians need to move towards a pragmatic and sustainable solution, rather than fanning hysteria. First, the potential for onshore processing must be reconsidered. Rather than arbitrarily processing all asylum seekers
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advantageprinciple and its enshrining in the Bill appears to be little more than an attempt to skirt the limits of Constitutional protections particularly an entitlement to judicial review, a key tenet of the rule of law and ultimately cast those processed offshore into a state of legal limbo. Attached to the Bills explanatory memorandum is the required Statement of Compatibility

To seek asylum in Australia, even if arriving by boat is

NOT ILLEGAL
1948 Migration Act

Degradation and Political Rhetoric As the Governments response to the Expert Panel Report continues to become clear, the situation faced by asylum seekers shows no signs of improving, heightening the need for a bipartisan solution. The decision of the Immigration with Human Rights, prepared in accordance with the Human Rights (Parliamentary Scrutiny) Minister to deny new asylum seekers work rights is the latest in a series of controversial Act 2011 (Cth) (Parliamentary Scrutiny policy adjustments. The right to work assists Act). Although the Bill is deemed to not people to sustain themselves and begin the engage any human rights obligations under process of integration into the community. the definition of human rights in the Parliamentary Scrutiny Act from which the 1951 This decision not only places another burden Convention Relating to the Status of Refugees on asylum seekers, it is both an explicit contrav-

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(Refugee Convention) is notably absent such a judgment is artificial. The construction of the unauthorised maritime arrival under the Bill envisages that all maritime arrivals who are not excluded persons have no lawful right to travel to, enter, or remain in Australia, and incorrectly assumes that the Bill does not engage arts 12(1), 12(4) or 13 of the International Covenant on Civil and Political Rights 1966 (ICCPR). By excising the mainland from the Migration Zone and introducing the unauthorised maritime arrival, the Bill aims to ensure that seaborne arrivals have limited recourse to judicial review or the protection of international covenants. ention of art 17(1) of the Refugee Convention and implicit violation of art 6 of the International Covenant on Economic, Social and Cultural Rights. The imposition of such restrictions on new asylum seekers raises questions of both legality and morality. By denying the potential for new arrivals to become self-sufficient a factor the United Nations High Commissioner for Refugees (UNHCR) considers crucial to resettlement it entrenches the habit of demeaning and demonizing new asylum seekers in the community. This provides a platform by which members of the public can justify criticism of asylum seekers who fail to contribute to society, perpetuating the vicious cycle in which refugees face seemingly insurmountable barriers to integrating into society. Finding Morality in Reality A primary difficulty with formulating a comprehensive refugee policy is how to reduce the incentive of refugees to undertake the perilous journey to Australia. The Expert Panel Report notes the need to reduce push and pull factors that is, those that drive would -be refugees from their country of origin and those that increase the appeal of traversing transit countries and attempting to reach

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8,427

Australia respectively. Whether or not the Government believes that its policy setting is sufficient to remove the incentive for potential refugees to attempt to come to Australia by illegitimate pathways, it is irrelevant in practice. When confronted with a genuine threat of persecution on the basis of race, religion, nationality, membership of a particular social group or political opinion, the enticement to escape to the possibility of a country where they are not persecuted, whether or not it is home to relatives or members of their diaspora, is hard to discourage. In developing a suitable and sustainable solution, the distinctively Asiatic character of Australias recent refugee story needs to be remembered. Although Australia has been a recipient of refugees from non-Asian countries, the majority are from the Middle East and Asia-Pacific. It is then prudent for Australia to engage with various regional neighbours to resolve what is a regional problem. What must be recognised is that political rhetoric

When confronted with a genuine threat of persecution on the basis of race, religion...the enticement to escape is hard to discourage.

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Iraqi refugees wait to receive food aid from US and Iraq soldiers outside of a US base in Habbaniyah, Iraq. Photo: Shawn Baldwin

As it stands, our Constitution bears no acknowledgement of Australias Indigenous peoples, while sections 25 and 51(xxvi) continue to allow for racial discrimination in the granting of franchise and the creation of legislation.

offshore to ensure that there is no advantage to one class of arrivals over another, an expeditious onshore program would lead towards an outcome of no disadvantage: all asylum seekers would be treated consistently with Australias international obligations, their determination readily made and the entry of refugees into the community hastened. Rather than leaving people to languish in inhospitable conditions on Nauru or Manus Island, a completely onshore processing system would ensure greater accountability and transparency. Secondly, a regional solution overseen by the UNHCR has the potential to establish an effective mechanism that assesses refugees expeditiously and equally. A program of this nature is not without precedent: Australia received more than 180,000 displaced persons between 1947 and 1953 via the International Refugee Organisation and the UNHCR established a regional program in the late 1970s in Malaysia one that was largely financed by Australia and resettled many Indochinese refugees in Australia. Were a similar program to be enacted, a person who is
v

In Australia, there is 1.1 refugee for every 1000 people

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determined to be a valid refugee could be readily resettled in Australia, or another country. Given that many Asian and Middle Eastern nations are not signatories to the relevant Conventions, the oversight of an international agency such as the UNHCR is attractive. Those asylum seekers assessed to be refugees would be protected from nonrefoulement the requirement that a State may not return a person to a territory where he or she may be exposed to persecution under art 33 of the Refugee Convention. Moreover, international oversight will help to ensure that those who do not fall within the Refugee Convention may, under the principle of non-refoulement, explicitly provided for in art 3 of the Covenant against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and arts 6-7 of the ICCPR, be entitled to a claim for protection.
A Way Forward

Although Government attempts to implement some recommendations of the Expert Panels report have been flawed, other recommendations must yet be considered and realised.

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Developing a robust regional policy and increasing the humanitarian program to 20,000 places immediately with a minimum 12,000 places allocated to refugees, up to 27,000 places over five years is a positive development. Steps backwards, such as the Coalitions plan to reduce the humanitarian quota to 13,750 places, if elected, cannot be accepted. Engaging with regional partners is a prerequisite to an effective refugee policy. Reforming the family reunion stream of migrants will free places for refugees. What is required is a bipartisan solution that looks beyond the headlines and politicking; one in which true moral and political leadership is shown. Recognising that alternative onshore processing arrangements, consistent with Australias international obligations are possible,that the demonization and reprehensible treatment of vulnerable refugees is unnecessary and that a regional multinational arrangement is possible, Australia can build a system of which it, finally, does not need to be ashamed.

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THE PATH
RECOGNITION
Rhiannon Edmonds

TOWARDS

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The record of Australias treatment of its indigenous peoples is far mid-twentieth century numerous steps have been taken by past a legislative impediment of the highest order.
In December of 2012 the Gillard Government convened the Expert Panel on Constitutional Recognition of Indigenous Australians to report on how the Constitution ought to be amended. Substantial contribution was sought and received from Aboriginal and Torres Strait Islander communities and persons in order to ensure that the recommendations provided by the Panels final report would reflect the mindset of Aboriginal and Torres Strait Islanders at a grassroots level. The draft bill within the Report includes provisions which would remove the remaining racially discriminatory sections within the Constitution as well as inserting new sections which would recognise the Indigenous peoples of Australia and their languages. This would further include a provision which would ensure the continuation of the Commonwealths power to legislate for Indigenous peoples. More than anything, the Panels proposed referendum will require unity on all fronts in order to gain the assent of both Houses of Parliament, as well as the dreaded double majority, proscribed by section 28 of the Constitution. This unity must be manifest in all arenas; across the political divide, within the proposing party themselves, across all sectors of the electorate, and also must bridge the gap between the political and community spheres. The Minister for Indigenous Affairs, Jenny Macklin, has made it clear that a referendum to recognise Indigenous Australians in the Constitution will not be held before
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from being one of which nation can be proud. Although since the governments to make amends for grave injustices, all are met with

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The referendum proposed by the Expert Panel will be, when put to the Australian people, the forty-fifth referendum to amend the Australian Constitution. If it succeeds, it will be only the ninth referendum in Australias history to do so.
or at the next federal election. Accepting this, the Government and relevant non-government organisations now have a number of years to guarantee a successful referendum, and to avoid the pitfalls which have plagued Australian referendums in the past. The referendum proposed by the Expert Panel will be, when put to the Australian people, the forty-fifth referendum to amend the Australian Constitution. Yet this exciting prospect is tempered by the poor legacy of Australias past. If it succeeds, it will be only the ninth referendum in Australias history to do so, and the first since 1977. The Australian electorate is notoriously cautious and conservative- a combination which Justice Michael Kirby has said is a major contributing factor in the dismal rates of failure in

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past referendums. The repeated failures of past referendums have left our Constitution scarcely altered from its 1901 form. Already in 1951 passing a referendum was deemed a labour of Hercules by the then Prime Minister Robert Menzies. Yet, as lamented by George Williams and David Hume in their recent publication on the topic, analysis of Australian referendums has historically been lacking from all academic fields. Although the failure of the 1999 referendum on a Republic did engender much criticism and commentary, this tended to be case specific, ignoring the broader trends which have plagued the majority of Australian referendums. The recent, tentative steps towards a referendum to constitutionally recognise Indigenous Australians now appear to have spurred on analyses of this kind. This is most likely due to the concern expressed throughout the Panels report that a failure of the proposed referendum would be highly damaging to the nation. These recent analyses have overwhelmingly stated that a successful referendum requires unity from the electorate. Past referendums have largely failed to inspire unity, and as result, have failed in their bids to amend the Constitution. The Co-Chairs of the Expert Panel recognised the need for bipartisanship as an essential pre-condition to any referendum. Indeed, no referendum has ever succeeded without it. Just as importantly, unity must also exist within the ranks of the proposing parties. During the lead -up to 1999 referendum, the Yes campaign was characterised by disagreement on the question to be put to the electorate. The resulting proposal of the Constitutional Conventions was considered by many to be so distasteful that it led to what Justice Michael Kirby described as an unusual marriage of convenience between the true monarchists and the most radical republicans contributed to the failure of the referendum. It is the unity within the Australian electorate, or lack thereof, that will make or break a referendum. This was disregarded in the lead- up to the 1999 referendum in what Kirby has labelled the elitist error. The substantial error made by the campaigners was in dividing the electorate into those likely to vote for or against, largely based upon their socioeconomic status. Thus, the YES and NO campaigns became divided along the borders

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The substantial error made by the campaigners was in dividing the electorate into those likely to vote for or against, largely based upon their socio-economic status.

of urban/rural areas, between states, and between classes of Australians. This preyed upon the substantial lack of civics knowledge within Australian society, allowing the YES campaigners to be seen as a highly elitist division, seeking to manipulate the uncertainty in much of the electorate in order to pass a referendum which would be most beneficial to the politicians and the elite. Those forging ahead on the path towards a referendum for constitutional recognition will have to conquer all these hurdles in order for such a referendum to pass. As it stands, support is bipartisan and the Gillard Government has in the past months introduced a Bill for an Act of Recognition to help build the momentum needed for change. This bipartisan support will also need to be maintained with regards to the specificities of the eventual referendum question. As seen in the 1999 referendum, division on the question itself can dispel general support for an amendment. But it is within the community that the referendum must be fought for. There is a shocking lack of constitutional knowledge within the Australian community, which has been documented in numerous studies over the years the more recent of which being the Civic Expert Groups Whereas the People. This was published in 1994, and revealed that a mere 18% of the Australian population

had a confident understanding of the Constitution. This figure was lowered to 10% when dealing specifically with 15-19 year olds. These statistics were common across the majority of civics knowledge, including referendums. Moreover, knowledge about the proposed referendum for constitutional recognition itself is minimal. With the proposal coming from a government commissioned panel, a grassroots support base is essential and with the assistance of organisations such as YouMeUnity, is beginning to be established. YouMeUnity has been involved in a number of initiatives, such as the Rock for Recognition concerts in November 2012, and the release of Recognise merchandise, which aim to increase awareness of and education surrounding the proposed referendum. Such initiatives demonstrate the recognition of a need to foster unity through education and awareness. The question on constitutional recognition of Indigenous peoples in the proposed referendum presents a key opportunity to amend the constitution for the better. However, without proper adherence to the lessons learnt from past referendums this may yet become the thirty-seventh referendum to fail. As succinctly put in a citizens submission included in the Expert Panel, this referendum is one Australia cant afford to lose
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Nick Melas

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AT THE CLIMAX OF THE GLOBAL

financial crisis, the public demanded a justification from their governments as to why the major institutional banks - those who the public had already condemned as responsible for the crisis -should be bailed out. The response was prompt, and audacious enough to succeed; the banks were too big to fail. Now, as nations rebuild themselves and address the systemic problems which left them vulnerable to the GFC, this myth is starting to outlive its usefulness. Recent banking scandals, such as HSBCs $1.9 billion deferred prosecution agreement regarding firm-wide failures to comply with anti-money laundering regulations, have brought this fact into sharp relief. The New York Times reported that at least part of the reason why the US Department of Justice decided not to prosecute the bank was because doing so would threaten the financial stability of American markets. As facts surrounding HSBCs conduct as a financial institution came to light, the agreement started to look less like a decision rooted in pragmatism and more like a flimsy excuse to sidestep the rule of law. Too big to fail is a turning point for the regulatory state, and the HSBC scandal demonstrates two competing conceptions of justice at the heart of modern liberalism. Crime and Punishment In response to the scandal, the US Senate Permanent Subcommittee of Investigations report of 334 pages was produced. The report is singularly astonishing and grim. Some $200 trillion of transactions were under-scrutinised by internal compliance officers at the bank between 2006 and 2009. At least $60 trillion of those transactions involved countries deemed a standard or medium risk. These risk category included transactions in

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US dollars to and from Sudan, Iran, Mexico, Burma, and other nation states with which transactions are affected by executive orders authorised by the International Emergency Economic Powers Act and the Trading With The Enemy Act. The banks appreciation of the regulatory risk was woefully inadequate; their policy stated that banks recognised by a regional HSBC bank as safe were considered safe transactions with any of other Thisfor approach is the hallmark the HSBC regulabank tory internationally. As and a direct result, Mexico state, the fullness of time was will rated show by HSBCs whether internal compliance assessment as a risk, which was of it standard is the correct response to the lowest problems four categories assigned by the bank of liberalism. After all, if its too biguntil to fail, 2009, its where it was bumped up to the highest risk category. Other too important to goserious wrong problems with the bank included a failure to perform due diligence under a Know Your Client scheme agreed upon by HSBC Bank USA and American regulatory bodies, as well as failing to adequately supervise billions of dollars of physical currency purchases in Mexico, and $290 million in travellers cheques purchased in Japan, but being bought in Russia. Settling the matter by way of a deferred prosecution agreement was a confusing response to this cavalcade of failures. Though the $1.9 billion fine was the largest of its kind in history, HSBCs share price continued to rise after the announcement. As yet, none of the former directors or other officers are being pursued, the US Department of Justice either. HSBC might

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Irene Dorner, CEO HSBC USA & Stuart Levy, Chief Legal Officer HSBC during a Senate Homeland Security and Governmental Affairs Committee hearing. Photo: Adrian Wilson

have been too big to fail, but apparently not too big for a slap on the wrist. Of course, in a world where crime is redefined in step with social, cultural, and technological progress, punishment can hardly stay the same. The bank has committed to, and has already begun, a largely self-regulatory response which pre-dated the deferred prosecution agreement itself. HSBC North America replaced its CEO, Chief Compliance Officer, AML Director, Deputy CCO and Deputy Director of Global Sanctions. Its spending on AML and compliance, as well as the number of employees in those areas, has increased almost tenfold since 2010. It has restructured its legal and compliance departments, and reviewed policies relating to risk. HSBC Group itself, the principal to HSBC business operations worldwide, has undertaking significant restructuring, has consolidated its risk profile through divesting itself of businesses and leaving the banknotes market. If these self-regulatory measures succeed in preventing further breaches of the law, could we say that those measures, and the terms of the agreement, are justice? This depends on the prevailing conceptions of justice in the regulatory state. Justice and the Regulatory State Conceptually, the HSBC affair is a manifestation of the conflict between freedom and security in modern liberal societies, and the implications this has for our idea of justice. Does justice demand that the financial framework of the
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When functions that are essential state are privatised, the social falls to the public.

to the health and stability of the cost for poorly executing them

state is controlled by the government to protect its stability? Or is it better to hand the reins to the market and trust that financial stability is in everyones rational self-interest? The advent of the regulatory state aimed to resolve this issue by privatising what had previously been considered public goods, and encouraging self-regulation with government supervision and cooperation rather than public ownership. It emerged as a response to various challenges to the welfare state model, such as the difficulty of regulatory enforcement, the incredulity directed at creating wealth by legislative fiat, and the perceived inefficiency of big government. The regulatory state has its critics too, particularly amongst the directors of major, publicly listed companies who increasingly find themselves saddled with new duties and liabilities. However, too big to fail is a weakness in the very foundations of the regulatory state, one that simply balancing the interests of shareholders, directors, and other stakeholders wont resolve. If an institution is too big to fail, it is too important to go wrong. As such, this justification becomes a serious problem when circumstances reduce the core idea to absurdity. Allowing major financial

institutions to decay is as blameworthy as letting them collapse - both represent significant corruption in the foundations of a state. The US Senate Inquiry evinces the worst of this regrettable truth about underregulated markets. The offensiveness of the banks conduct, and the decision to pursue a deferred prosecution agreement, partly stems from how the bank failed in its duties to the public by actively exacerbating the social and foreign policy issues plaguing American politics. The Mexican drug war has killed hundreds of thousands in Mexico alone, and the American war on drugs continues to consume vast public resources, inflame racial tensions, and ruin innumerable lives. Recalling that HSBC too big to let a full criminal prosecution cause it to fail, it is also too important to supplying the Mexican drug war with US currency. Major deposit-taking institutions, a foundational part of the American banking (and therefore financial) infrastructure, must not undermine the social policies of the government. Whilst allowing a nations currency to facilitate the drug trade is a very subtle security threat, conducting transactions involving organisations who are stated national security threats is more directly dangerous. Yet, through its involvement in Iran, Sudan, Libya, and Burma, HSBC has done that too. The insult of these injuries is not felt by the government itself, but by the public. When functions that are essential to the health and stability of the state are privatised, the social cost for poorly executing them falls to the public. It is the public who lose their homes and businesses

in financial crises, and lose their lives in drug wars and terrorist attacks. In the regulatory state, the publics remedies and grievances are less clear, and they rely upon regulators for this purpose. Private institutions also have an interest in the states dispensation of justice; they seek penalties for misconduct that are targeted and constructive. A short-term profit modality complements long-term financial stability, but does not always create it. The banks steps to selfregulate in this case is a stated reason (or convenient excuse) for using less aggressive means. Aside from the agreement itself, the executive have been replaced, billions of dollars have been set aside for compliance training and fines, and policy reviews shall occupy years of the banks time and will be paid for by the bank. It is an attempt to fix the problem, but does it resolve grievances and remedy injustice? On the contrary, it tells the public that they cannot afford the rule of

law, and that the state does not have the financial stability to do justice. Instead, we must settle for a different kind of justice, one without pathos. Security and Liberty Whether HSBC itself was too big to fail is dubious. However, what the bank represented - that is, the survival of the regulatory state, and the freedom for private enterprise to control essential functions of the state - might not so easy to dismiss. The modern liberal state will continually find itself at the crossroads between freeing assets to the market and maintaining control over them in the interests of security. This is a conflict at the heart of liberalism, and it manifests itself in matters of financial security through the HSBC and Standard Chartered anti-money laundering scandal, the manipulation of the LIBOR, the securitisation fraud perpetrated by so many major investment banks prior to the GFC, and so on. It was described in the work of Carl Schmitt, as the authoritarian impulse at the heart of

political liberalism, and is in the context of any decision about gun control, torture, executive power, or the censorship of anti-democratic ideologies. Whether too big to fail is a just policy does not depend so much on the actions of individual banks, but on the bigger picture. The reforms which Western governments have achieved over the last three decades to promote cultures of compliance, self regulation, and privatisation have been in aid of answering the flaws of the welfare state. The decision to pursue agreements and compromises, rather than prosecutions, must be understood in the light of these reforms. In the case of HSBC, it means withholding the costly and arduous process of retributive justice against the bank and its former officers. Instead, the US government has started a process of restorative justice; trying to temper the profit motives of major financial institutions with some respect for the role they play in liberal, free market societies.

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Virat Nehru

from

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FREEDOM OF SPEECH PRESS

NEVER IN RECENT history has the rhetoric been so


deafening regarding the regulation of the press and media practices, than since the full report of the

Leveson Inquiry was released. The media, once the guardian angel of the voice of the public and one of the pillars of democracy, has been reduced to nothing more than a cynics main course; its definition murky and its role circumspect, much like the double quotation marks that encompass the word.
the minnow. When British Prime Minister David Cameron set up the Leveson Inquiry, he promised to implement the recommendations as long as they were reasonable. However, when the report was released, he backed down, refusing to bring in any new legislation or amend current laws that would give statutory shape to the recommendations of the inquiry. In a voracious speech to the British parliament, Cameron defended his stance. It would mean for the first time we have crossed the Rubicon of writing elements of press regulation into the law of the land. We should be wary of any legislation that has the potential to infringe free speech and the free press. The British Prime Ministers choice of words is amusing to say the least. It is now considered a historical fact that Caesars crossing of the Rubicon was just the prelude to a very successful campaign and the metaphor, though mistakenly connoting a point of no return, is more apt to signify boldness and courage. Furthermore, as Natalie Fenton, a professor of media and communications at the University of London noted, the use of such a metaphor is misleading. It suggests that there are no restrictions on the press as it stands today. Even though Britain is a signatory to the European Convention to Human Rights which guarantees freedom of the press and a right to privacy, it is not an absolute form of freedom.

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As British Prime Minister David Cameron and Deputy Prime Minister Nick Clegg debate the extent of legislative change that must be brought about as a result of the inquirys recommendations, the role of the media and its relationship with the public, hangs in the balance. What comes about as a result of the Leveson Inquiry, more formally titled as An Inquiry into the Culture, Practices and Ethics of the Press, will not only help in shaping what role the media will play from now on, but also what impact this might have about perceptions regarding the media in other democratic nations, especially, Australia. To Regulate Or Not To Regulate? Calls for regulation of the press have strengthened as there is increasing consensus that forms of self-regulation have failed. Advocates of selfregulation argue that any implementation of statutory regulation would endanger the sacred notion of free press. However, there is growing cynicism regarding how that notion has been utilised, especially by those who are part of the status quo. The principles of democracy and of free speech are being used to defend actions that were far from serving the public interest and damaged the lives and reputations of several people while infringing upon their rights. Britain is dealing with abuse of unaccountable power, and outcries of free speech stem from an inclination to preserve the status quo and a resistance to change rather than genuine concern over the freedom of the press. As R.H. Tawney put it, freedom for the pike is death for

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A new tough, independent regulator with teeth. The only question that remains is whether the PCC should be replaced by this independent statutory body.
The British press is subject to a range of laws, including a hotly debated defamation Bill, which the press has accepted and is likely to be passed soon. The statements by Prime Minister Cameron and the tendency to oversimplify rhetoric when discussing regulation of the press give rise to the need to acutely analyse some of the major recommendations put forward by Lord Justice Leveson in his report. Let us look at the two major recommendations put forward by Lord Justice Leveson. First and foremost, newspapers should continue to self-regulate, with the government having no power over what gets published. However, given that, there also needs to be a new press standards body that is independent and establishes a new code of conduct for the press. This body must be underpinned by statute so that the publics confidence in the press is rejuvenated by
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ensuring that public complaints are dealt with effectively. Furthermore, statutory backing would guarantee the independence of this new body and keep it free from any government interference. The result would be something akin to Office of Communications (Ofcom), the independently run, government approved regulatory body that is responsible for broadcasting and telecommunications and is backed by the Communications Act 2003 in the UK. Though Lord Justice Leveson must be commended on the ambitious nature of his recommendation, there are still significant questions that need answering, most importantly, that of the concept of statutory underpinning. A statutory regulatory body such as Ofcom may work in the case of broadcasting and telecommunication services, but the press is a different matter altogether. Statutory regulation of the press is quite unacceptable. Lord Justice Leveson could head the hair splitting convention as he attempts to define the difference between statutory underpinning and statutory regulation. A secondary issue is regarding the legitimacy of the independence of this new body. The major threat here is not government interference, but the

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press itself. After all, this body would be totally funded by the press. In such a situation, how can such a body convince the public that it is independent, in the true sense of the word? These are significant questions that have yet to be answered. Lord Justice Leveson encouraged the press to independently implement these recommendations. Editors of most major publications have accepted forty of the first forty seven of these recommendations. However, there is still no consensus over the fact whether this new, independent, statutory body will be the way forward for press regulation in the UK. Toothless Tigers No More The independent statutory body would replace the Press Complaints Commission (PCC) as it has been extremely ineffective in the current system. In fact, there is no debate over whether the PCC should be replaced or not. The PCC has itself agreed to move into a transitional phase until a long term replacement can be found. Lord Hunt, Chairman of the PCC stated that he wants a new tough, independent regulator with teeth. The only question that remains is whether the PCC should be replaced by this independent statutory body. Lord Justice Levesons second major recommendation is quite an interesting one, proposing the inclusion of a conscience clause in contracts between journalists and publishers. This step has been suggested due to the overwhelming empirical evidence collected throughout the inquiry that indicates more often than not, journalists were being put under pressure to do things that were unethical. The new statutory body would establish a whistle-blowing hotline and encourage publications to include a conscience clause in contracts with journalists that would protect them if they refuse unethical instructions. It remains to be seen whether this encouragement would be legally enforceable or merely a suggestion. If it is deemed enforceable, then this is definitely a step in the right direction. The Development of the Fourth Estate in Australia Perhaps the worlds worst kept secret, is that Australian press has one of the most concentrated media landscapes in the world. This was one of the major reasons for introducing a flurry of broadcasting and ownership legislation between 1987 and 1992. The concept of media segregation through media ownership was promoted and

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Rupert Murdoch, Chairman & CEO of the worlds second largest media conglomerate, News Limited. Photo: Kevin Lamarque

enforced through these cross media laws, implemented by the Broadcasting (Ownership and Control) Act 1987. Cross media laws were intended to deter a culture of monopoly within the media world as ownership was restricted based on medium television or the press. One could not control both. At the time, this was seen as a direct reaction to the rise of media moguls Kerry Packer, who controlled the Nine network (television) and Rupert Murdoch, who controlled News Limited (press). Through subsequent amendments and new legislation, by the time the Broadcasting Services Act 1992 was enforced, the concept of media segregation in terms of ownership was legislatively enshrined. As the then Prime Minister, Paul Keating famously put it: You could either be the prince of print or the queen of screen. The goal was to restrict foreign ownership, encourage healthy competition between markets

and discourage monopoly by promoting access to different viewpoints. The Howard government tried to abolish the cross media laws by arguing they had become an anachronism in the changing media landscape but were unsuccessful as the Broadcasting Services Amendment (Media Ownership) Bill 2002 was not approved by the Senate. Even though the Howard government was not able to completely abolish the cross media laws, they succeeded in relaxing them slightly, with the Broadcasting Services Amendment (Media Ownership) Act 2006 passing, albeit heavily moderated. The relaxation of the cross media laws lead to increased concentration of media ownership, which was already quite a significant problem. Repercussions of the Inquiry in Australia When news of the now defunct News of the World tabloid scandal broke out, Australia set up its own independent inquiry into Australian media headed by Ray Finkelstein QC. Finkelstein and Leveson both reached similar conclusions in their major recommendations. Both recognise that self-regulation has failed and want an in31

Cross media laws were intended to deter a culture of monopoly within the media world as ownership was restricted based on medium television or the press.

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dependent body backed by statute that can enforce sanctions for unethical behaviour. The Finkelstein report suggests that this independent body be funded by the government whereas Leveson suggests that it be funded by the press itself. There has been significant rhetoric surrounding the issue of funding and that this may invariably influence content. This is highly misleading. Both inquiries have clearly specified that the independent body, irrespective of funding, will have no jurisdiction over what gets published or circulated. The main purpose of this body would be to ensure that public complaints are dealt with efficiently and sanctions are enforced for unethical behaviour so that there is increased transparency between the public and the media. However, the Finkelstein report failed to address the issue of concentrated press ownership, which is so significant in Australia. This is highly disconcerting because concentrated press ownership is becoming a chronic problem and there are no effective measures being put forward to tackle it. Currently, the Australian press is in a comparatively better off state than the UK, but given the monopolised press owner-

How can the public be reassured that it will remain independent? The idealism of a truly independent body must be applauded, but it can also prove to be fatal.
ship in Australia, it doesnt take a leap of faith to consider that public confidence in the press is slowly but surely diminishing.

Pragmatic Solutions Much of the debate has been revolving around the opposing binaries of statutory regulation and self-regulation. Political rhetoric has posited these two forms of regulation at two extremes of the spectrum. This is not only misleading, but also factually incorrect. Firstly, the statutory regulatory body recommended by Lord Justice Leveson has got nothing to do with what gets published. The press would continue to self-regulate. Its existence would only ensure that public complaints are dealt with more efficiently and sanctions are enforced for unethical actions. Secondly, content regulation and public accountability are two very different things. Yes, what gets published

should not be influenced but not at the cost of propagating unethical actions. The press must be held accountable for their actions so that it can redeem itself in the eyes of the public. So, the issue is not statutory regulation as long as that has no control over content. The core issue is funding and whether or not complete independence of the proposed statutory body can be guaranteed. Whether this body be totally funded by the press (as proposed by Lord Justice Leveson) or the government (as proposed in the Finkelstein report), how can the public be reassured that it will remain independent? The idealism of a truly independent body must be applauded, but it can also prove to be fatal. Ofcom, the independent, regulatory body for broadcasting in the UK is already facing pending cases and controversies to justify its funding sources. What needs to be established is a structural system of internal change within the media industry and how it perceives itself. Otherwise, it wont be long before another inquiry comes along and the industry is plunged into a cycle of infinite regress. It remains to be seen whether the fourth estate can redefine itself amidst intense scrutiny and once again establish itself as one of the foundational pillars of democracy.

James Norton

The Mystery Of High Court Appointments


With the Gageler and Keane appointments fresh in our minds, James Norton questions the current procedures, a crucial role left to the whim of the government in power.
closer to their own must be expected to, on at least some occasions, do exactly that. Given these appointees are the ones who may, one day, have the final say on the validity of the governments legislation and executive policies, their political allegiance is indispensable. Aside from the reality of the appoinments, there is the equally important issue of perception. The mere perception that political considerations can play a role in the appointment process can tarnish the esteem in which the High Court ought to be held. The extent to which Mary Gaudrons Labor Party background helped secure her a spot on the High Court bench, should be irrelevant to discussions surrounding High Court appointments. Fortunately, at least, it would seem that we have moved considerably away from the practice of appointing MPs. The Menzies Governments appointment of Garfield Barwick, Liberal Attorney-General, in the 1960s and the Whitlam Governments appointment of Lionel Murphy, Labor Attorney-General, in the 1970s were the last two such occasions. Perhaps governments have taken to heart the quip of the great Owen Dixon, that while good lawyers can be converted into good politicians, reconversion is impossible. More imaginably, though, is that governments have been eager to avoid being seen as appointing one of their own to the most important court in the country. The appropriate course to take in regard to High Court appointments in order to remove any hint of politics, whether real or perceived, appears strikingly simple: an independent body comprised of eminent persons from both within and outside the legal profession, which, based on clear criteria, recommends the best men and women for the job. In the absence of a constitutional amendment, the final decision would still officially rest with the Governor-General, and in practice rest with the Prime Minister and the rest of Cabinet. The difference, however, would be that they would be confined to choosing from a finite list of candidates who have been shortlisted owing to their legal credentials. Professor of Law at UNSW, George Williams, advocated such a body in 2009, which would replicate the existing framework in Britain. If we are to seek a truly independent judiciary, the separation from the governmental influence must begin pre-appointment, not post- appointment. Given, however, that one of the spoils of winning government is to appoint High Court judges, in-power governments are unsurprisingly reluctant to alter the status quo. After all, the process has seen little change in 110 years. Save for one or two days of publicity after a new appointment and some brief background on the appointee, High Court appointments receive little attention in the mainstream media. The retirements and appointments come and go with little fanfare and, for most of those outside the legal profession, the High Court resumes its relative anonymity. This is perhaps unsurprising, given that the only time the High Court receives any meaningful publicity in its day-to-day work, is when it deals with highly politicised cases; think the plain packaging cigarettes decision and the Malaysian Solution decision, for recent examples. Lack of media interest in appointments, however, is a shame, because as the aforementioned cases illustrate, High Court decisions have a profound impact not only upon technical matters of law, but also upon important aspects of Australian society. By extension, such is the impact of the individual members of the Court. We must think very carefully about how we choose them.
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WE MAY LIKE to believe that the decision is made solely upon the basis of the appointees proven legal credentials. Credentials which, after a robust assessment of the possible candidates, endorse the appointee as the best person for the job. While that may be the process that operates in some instances, it is far from guaranteed under the current arrangement. There is inherent uncertainty in the manner in which the decision is arrived at; as such, this presents a problem. Ideally, the appointment of judges to the most important judicial body in the country should occur without a whiff of political bias; appointees should be viewed as entirely politically neutral, they should be seen to have been appointed solely on the grounds of their legal attributes, not political ideologies. If we reject a system of de jure politicisation of judicial appointments via elections, which notably occurs in various US states, we should also reject (at least the risk of) the de facto politicisation of appointments via the entitlement for Cabinet to, in essence, appoint whomever it pleases. The argument is not that all or even most High Court appointments turn upon political considerations. To argue that would require intimate knowledge of intra-Cabinet processes. Rather, it can be asserted that there exists is a possibility that some appointments are influenced by political concerns. The presence of this possibility means the current way of doing things is unjustifiable. While it is impossible to say with complete certainty, whether a particular appointment was entirely apolitical or to what extent political considerations came into play, governments possessing the opportunity to favour candidates who share ideologies

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Adam Spence

Once More Into The Breech


Following one of the most horrific mass shooting incidents in US history, Adam Spence examines the modern failures of gun control and why it needs to change.
ON AN APRIL afternoon in 1996, a man walked calmly into the Broad Arrow Caf carrying a sports bag. He ordered a meal and sat on the deck overlooking Mason Cove; the ruins of the harsh, colonial era penitentiary opposite, reflected in the water. Nearby patrons observed the man talking to himself and appearing increasingly anxious. None of them would have imagined that the man had just murdered the owners of a nearby bed and breakfast, nor could predict the abhorrent crime he was about to perpetrate in Port Arthur, a quiet settlement on the Tasman Peninsula. He went back inside the caf; gun fire soon echoed across the historic site. Concealed inside his sports bag had been a Colt AR15. A semi-automatic assault rifle, it was at the time a legal weapon in parts of Australia, including Tasmania, where firearms regulation was particularly relaxed. Lightweight, accurate and referred to with derision in hunting circles as a spray and pray weapon; it took less than half a minute for 12 lives to be taken and a further ten people to be injured. 35 people would lose their lives that day, 21 more would be injured. A crime on an unprecedented scale in this country, it remains Australias worst
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mass killing. It ranks among the worst such events in modern times worldwide, and came only weeks after the chilling school shooting in Dunblane, Scotland, that saw 16 children and a teacher murdered. Oceans apart yet united in grief, two countries were confronting the reality of gun violence. In Britain, gun laws introduced in the aftermath of a previous massacre in 1987, which included a ban on semi-automatic weapons, were strengthened. A general ban on ownership of handguns was introduced, and an amnesty offered for firearms and ammunition to be handed in to authorities. Australia followed a similar path, with the Commonwealth compelling the states to join a National Agreement strictly regulating licences and restricting what weapons were permissible. Semi-automatic weapons like the AR15 were, with few exceptions, banned, and a national amnesty and buy-back implemented. Though in both countries, these measures enjoyed majority support, the new laws were not without controversy. In Britain, sporting shooters felt discriminated against, while in Australia, the new laws were seen as part of a broader conflict pitting urbanites against those in rural areas.

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None the less, the overwhelming feeling in communities remained that there was no need for such weapons to be in the hands of the general public. The same hasnt been true for the United States, whose deeply ingrained gun culture has formed a backdrop to so many shooting massacres over the past three decades. In the most recent, a lone gun man armed with a Bushmaster version of the AR15 rifle used at Port Arthur, murdered 26 people at an Elementary School in Newtown, Connecticut. 20 of the victims were children, aged just 6 and 7. As with Dunblane and Port Arthur, the scale and context of the Newtown shooting has become a watershed moment, offering perhaps the best chance in years for meaningful progress on firearm regulation in the United States. States like California in recent years have made progress, but only at a federal level can more substantive change be achieved. In 1994, the US Congress approved the Federal Assault Weapons Ban, a series of provisions within the Violent Crime Control and Law Enforcement Act, outlawing the manufacture of certain weapons for the civilian market. In addition to setting general criteria for what weapons should be prohibited, the law identified several specific models, including the Colt AR15. A sunset clause however lifted the ban automatically in 2004 and the Congress chose not to extend the law. To date, proposals to reintroduce the ban have failed, and potent weapons like the AR15 can be puchased from ones local Walmart. While in Britain and Australia, the public responded to shootings by dismissing the need for such weapons, in the United States, opinion is more divided. Indeed gun sales spiked in the shadow of the Sandy Hook massacre, as they have

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For the United States, gun control is more than a legal issue, its a cultural issue. Its a nation whose independence was born in the flash of a muzzle.

The rate of private gun ownership in the US is

firearms per 100 people.

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done after previous mass shootings. Following the 2011 shooting in Tuscon, Arizona, of Congresswoman Gabrielle Giffords and 18 bystanders, sales of the Glock 19 pistol used in the shooting significantly rose. On the website of one major gun retailer days after 20 children lost their lives in Newtown, a message comforted customers, assuring them that despite strong demand and low stock, more guns were on the way. For the United States, gun control is more than a legal issue, its a cultural issue. Its a nation whose independence was born in the flash of a muzzle. A nation whose right to bear arms in defence of that independence is cemented in the second amendment of the Constitution and whose population fiercely defends that right. When you need a permit for a handgun but not for military style rifles in some states, its clear things need to change. When retailers have Christmas specials on large calibre weapons, and sell out by Christmas, its clear that change must be both legal and cultural. But in the US, that change will not come easy and progress cannot be limited to gun control. It would be wrong to ignore the need for tighter gun control, and the longer term potential it will have, but it would also be wrong to overstate the effects it alone would have. While Britain has seen a significant decline in gun crimes in the past decade, the number rose sharply after stricter laws were introduced following

Dunblane. Even with gun ownership among the lowest in the world and favourable trends more recently, a lone gunman was able to take 12 lives in Cumbria in 2010 in a four hour spree. Illicit weapons and those predating the bans remains a significant problem in Britain. In the US, a market saturated with firearms, the problem is even bigger. Despite the 1994 Assault Weapons Ban, two gunmen in 1999 armed with weapons predating the ban took 15 lives at Columbine High School in Colorado. It is too late to rely

Its clear that change must be both legal and cultural.


on stricter laws to make a difference in the nearer term. Pragmatically speaking, stricter gun control laws in the US can now only hope to reduce the potential for and scale of mass shooting events as time moves forward. The solution then must go beyond gun control; focusing not only on the means but on the root cause of such heinous crimes. Progress is needed in addressing the mental health issues, that from Columbine to Newtown, from Dunblane to Port Arthur, have invariably played a pivotal role in such tragedies. Addressing gun crime goes beyond what the law alone can accomplish. It will take a societys effort; a society working to cure the ills within in it and working to change the attitudes that permeate it.
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Sam Murray

The Right To Silence Under Attack:


Sam Murray examines the NSW Governments proposal to partially abolish the right to silence, its impracticalities and why it contravenes the basic rules of evidence underlying the criminal justice system.
NEW AND STRENGTHENED anticonsorting legislation introduced. Recommendations for the indefinite detention of non-violent offenders made. Parliamentary select committees into sentencing, bail procedures, drug rehabilitation process, and the partial defence of provocation established. The NSW Government has certainly been busy in its attempts the last 18 months to leave its mark on the NSW criminal justice system. But nowhere has its attempts at reform been better represented and most controversially introduced in its proposal to partially abolish the right to silence. Proposed by Attorney General Greg Smith, formerly the NSW Deputy Director of Public Prosecutions and member of the Hard Right of the NSW Liberal party, the reforms were first proposed in late August with legislation introduced to parliament in October. Other than the fact that such an overwhelming change to the basic rules of evidence and principles criminal justice was given less than three months for discussion and debate, the resultant legislation was, for want of a better word, abysmal in its drafting. The Evidence Amendment (Evidence of Silence) Bill 2012, if introduced would add Section 89A to the Evidence
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Act 1995. Specifically, it allows an unfavourable inference to be drawn (for instance about consciousness of guilt or the credibility of a defendant), if a defendant fails to mention a fact during official questioning that is later relied upon by the defendant in trial, for instance an alibi. In order to mitigate the massive potential for harm this can have on the legally illiterate but innocent, this inference can only be drawn if a cation was given to the defendant during official questioning about a failure to mention such relevant facts and if the suspect had the opportunity to consult a lawyer about the effect of refusing to mention a relevant fact. These provisions supposedly are sufficient to deal with the conventionally raised arguments in favour of the right to silence; that innocents could accidentally incriminate themselves for other actions, that innocents might initially make mistakes in their statement that cause the police to distrust them, that innocents might remain silent for an abundance of legitimate reasons (mental capacity, intoxication, age, stress, loss of recall, misunderstanding of the question, ignorance of rights and duties, and fear of consequences). These traditional harms, and other principled justifications

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have been articulated far more eloquently than I can hope to achieve right now, but the governments argument is that because the reform requires access to a lawyer to give proper advice, hopefully these can all be avoided. This has been lauded by the government as an adoption of the British approach to the right to silence, a comparison which is terribly disingenuous for reasons that will be discussed. Basically the logic of the proposal is that a person who is arrested, is cautioned about remaining silent (for instance about his alibi), is advised by his lawyer on the harms of remaining silent about his alibi, procedes to remain silent anyway, and magically finds an alibi before the trial, can have a negative inference drawn about his refusal to mention his alibi. Ignoring the aforementioned conven-

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Such overwhelming change to the basic rules of evidence and principles of criminal justice was given less than three months for discussion and debate.

tional harms of undermining the right to silence, and more philosophical harms (for instance, how it undermines the golden thread of criminal justice, by effectively reversing the burden of proof with respect to evidence not initially mentioned), the reality is that despite the provisions designed for procedural fairness, their very presence reveals the bill to be a completely fantastical legal fiction. Dont get me wrong, the necessity for a lawyer to be present, and for a caution to be made, are critical for the reforms to be even halfway acceptable. However, the fundamental problem with the requirement for a lawyer to be present to provide advice on what facts should and shouldnt be revealed to police during official questioning, is that there will be a ridiculously small amount of cases where lawyers will both be available and in a position to provide adequate advice to defendants. The bill requires that 24 hour advice is available to every individual arrested and subjected to questioning in the entire state. Considering both the sheer unavailability of lawyers in rural areas, the empirical inability of Legal Aid to expand their provision of legal services to anyone beyond Indigenous Australians and minors and the financial ability of the likely majority of defendants to be able to call upon the resources of the private sector on an immediate basis, there is simple no feasible way that under the new law that all arrested suspects can be subjected to questioning under the act. The consequent result is that existing Legal Aid resources are stretched to the point of exhaustion, the financial standing of most suspects takes a massive hit, custody times exponentially increase and

police paperwork, administration and delays are massively exacerbated. This is why the comparison to the British example is laughable; they have a fully-funded and costed legal aid service which is designed to provide substantive legal advice to all incarcerated suspects. Considering there are no plans to increase public access to criminal legal services, and the fact that assessing the current state of NSW services as being comparable to the British system is beyond absurd, means that all the extant failings in the British system are enormously magnified

Political imperatives seems to override a duty to create effective and meaningful legislation, and the duty to protect the rights of individuals.

in the existing situation. Even more problematically, some criminal lawyers have cast doubt on whether in the circumstances even if a lawyer is on hand whether they can provide adequate advice. Considering the limited time they have to interview their client, and the fact that police are rarely cooperative as to providing defense lawyers with detailed charge sheets and what evidence they intend to use (considering any potential trial is months away), the amount of information that defense lawyers have to work with is impossible small. This in turn opens up massive potential for claims against lawyers for professional negligence if they provide inadequate advice. Consequently, there

has been discussion between various legal organisations to issue a general directive to all defense lawyers to instruct them to flatly refuse to give their clients any advice regarding the right to silence, and therefore render the legislation useless. There are of course other practical problems with the legislation; there are no allowances made for the intoxicated being questioned, there is no clear definition of what official questioning actually means so theoretically it could encompass questioning of witnesses who do not know they are suspects, the required caution is not required to be in a standardised form (like in Britain), such a caution requires extraordinarily competent translators to be on hand 24/7 to ensure that suspects understand the caution (even a minor mistake in translation could be fatal) and detention times are massively increased to allow for legal advice to be given before official questioning. All of these reek of legal reforms which sound good to politicians, but to any lawyer who even considers how the bill will be practically implemented, it reveals itself as being a hollow shell of pretensions of being tough on crime. Consequently, the proposal should be seen as part of the regrettable law and order auction that both the Labor and Liberal parties of NSW are soon quick to condemn but yet are active participants lest they be accused of being soft on crime. Unfortunately, this recent reform once again demonstrates that political imperative seems to override a duty to create effective and meaningful legislation, and the duty to protect the rights of individuals.
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Justin Abi-Daher

Long Live Pro Bono

Justin Abi-Daher examines the varying perspectives on pro bono work and why a voluntary minimum target could potentially increase equality within the legal system.

BUT PRO BONO work is way too timely and not something I should have to do. These are words that are murmured too often in many law firms hallways. Forget the social, economic and corporate advantages pro bono work offers; many lawyers today do not consider their corporate responsibility and moral obligations as the exclusive key holders to justice. Is this a fair argument that should be accepted, or should a minimum pro bono target be introduced to ensure everyone within the legal profession, contribute to increasing access to the Australian legal system? Has it ever struck you that many law firms today are not practising what is preached to the future of the legal profession? Well, its a sad reality check, something that is the result of an escalating trend whereby many firms do not embrace a voluntary minimum pro bono target and allow their solicitors to escape their moral and social duty to the public. As each law student sits in his or hers ethics based course, they are taught the opposite of what is observed in many firms that he or she has a moral obligation to do pro bono work; that he or she has a social
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and moral responsibility to help increase access to justice by making their experience available to the disadvantaged groups. While these ideals are being taught, in practice the legal profession is trailing behind. Under current Australian conduct rules, including the Law Societys Professional Conduct and Practice Rules 1995 and the Law Council of Australias Model Rules of Professional Conduct and Practice 2002, the idea of a pro bono target is still nonexistent. David Hillard, Pro Bono Partner at Clayton Utz and writer of Opinion: Towards a voluntary minimum pro bono target, highlights the need to introduce a voluntary minimum pro bono target to combat the lack of participation by some law firms in Australia and establish a necessary performance benchmark: We need a minimum target within these conducts to send a powerful message that the conduct of pro bono work is a fundamental professional responsibility for all lawyers, regardless of their seniority or nature of their practice. While 92% of individual Australian barristers in a 2008 national survey by the National Pro Bono Resource Centre agreed that

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Enforcing a minimum pro bono target will potentially lead to a misallocation of the necessary resources to take on a pro bono case for the sole purpose of meeting targets.
lawyers should do pro bono work, making it compulsory is not entirely advantageous. As Daniela Aroche, the writer of The pros of pro bono work Looking great on your CV states, many lawyers forget the satisfaction of making a difference and the ability pro bono work gives to gain useful hands-on experience and valuable skills development. Why? Money. Yes, pro bono work is beneficial by affording greater autonomy for lawyers and allows them to help the less fortunate, but it is unpaid and to some presents a significant drawback. There are further resource constraints, as many lawyers have claimed they cannot do pro bono work due to a lack of time and insufficient expertise in relevant areas, according to the 2008 National Pro Bono Resource Centre survey. Compulsory pro bono work may lead to underperformance if motivation is lacking, thus weakening the quality of services provided and ultimately undermining the goal of increasing access to justice. Additionally, it would significantly reduce the expectation upon the state to provide adequate levels of legal aid and perhaps lead to a decline in these government provisions, placing greater strain on private lawyers, reinforcing their disinclination to uphold their civic duty: Enforcing a minimum pro bono target will potentially lead to a misallocation of the necessary resources to take on a pro bono case for the sole purpose of meeting targets, states University of New South Wales law student Maria Bestawros. Undoubtedly, the introduction of a voluntary minimum pro bono target is an essential step in directing the development of greater pro bono programs within law firms to ensure all lawyers are contributing their experiences to those in need. However, will the voluntariness of this target prove to be a giant loophole that many firms will use to avoid pro bono work? It is quite likely. Maria Bestawros, who advocates for volunteer work amongst students, suggests that while the target is a fresh and innovative idea it is problematic and unworkable in practice: I dont believe this is a viable option. Lawyers currently work in stressful environments with extensive time constraints. Enforcing a minimum pro bono target will potentially

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lead to a misallocation of the necessary resources to take on a pro bono case for the sole purpose of meeting targets. Fourth year law student, James Jankulovski is of a similar opinion, as he suggests that setting minimum targets would affect the quality of the work performed for the clients: To make it compulsory or to set minimum targets would remove the compassionate aspect with which, I believe, pro bono work should be taken on. That said, if there was a diminishing involvement in pro bono work from the legal profession more broadly, the introduction

Including pro bono work affords a variety of challenges to the highly talented young lawyers who need occasional rotation from a six trolley commercial dispute.

of guidelines which outline minimum targets lawyers should aim for may be useful in encouraging participation. A point many are missing with this recommendation of a voluntary minimum target is that it is still essentially, voluntary. As David Hillard explains, it is a simple target for aspiration which provides a strong message on what lawyers should strive for. The control of pro bono work is a prominent issue, and the reform of Australian conduct rules is necessary to ensure a fair balance between a lawyers

ability to bridge community gaps and their personal commitments: Including pro bono work affords a variety of challenges to the highly talented young lawyers who need occasional rotation from a six trolley commercial dispute, states Hillard. Fourth year law student and volunteer paralegal, Miriam Succar, affirms that whilst a target may be dangerous, the existence of certain requirements can be useful in allowing practitioners to pursue pro bono worker more easily:I think that forcing lawyers to do pro bono work could potentially be dangerous, ashe/she will not devote his/her full attention and care to the work. However, there should be requirements for pro bono work to ensure that those that want to do it, or those that are considering it, are able to pursue it. With the existence of varying opinions throughout law schools and in the legal profession, the reform of pro bono work whilst necessary will be a timely battle. Perhaps, the answer lies within the future of the legal profession. Many law students are enthusiastic about entering the profession and taking on pro bono work. Take, James Jankulovski who states in regards to taking on pro bono work: Absolutely! From my experiences to date, pro bono work is extremely rewarding. It is beneficial not only to the client but can leave the practitioner involved feeling fulfilled, with a great sense of positive contribution However, will this enthusiasm translate into practice or will these students follow the trend set by current practitioners? Only time can tell
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Virat Nehru

Artwork by Christina Guo

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RACONTEUR

CRIMINAL LAWS PRODIGAL

CHARLES WATERSTREET IS like the Mona Lisas smile; everyone knows of him and has an opinion about him, but nobody can quite put a finger on what makes him the way he is. A part time lothario and full time criminal defence barrister, he is perhaps, the Australian legal professions most well known enigma. Ever since Rake, the television series, was first telecast back in 2010, which was based on his rather infamously indulgent lifestyle, the character of Cleaver Greene, played by Richard Roxburgh in Rake and the persona of Charles Waterstreet in the flesh, have become interchangeable in popular culture. With a penchant for taking the impossible cases and quite often winning them and a lifestyle that can tickle even the best raconteurs, Waterstreet has come to be known as something of a deviant maverick. When confronted with the fact, he is quick to retort with his customary wit: only among girlfriends and ex-girlfriends. Nobody else should know

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Born in Albury, NSW, Australia

Created hit ABC TV series, Rake

1950

1960

1970
Regina (C'Wealth) vs Baladjam & Ors NSWSC Graduated from the University of Sydney with a BA & LLB

1980
Worked with Graham Bond as a theatrical and film producer Barrister at Seven Wentworth Barristers Chambers

1990
Founded Forbes Chambers Produced the cult classic film Howling III The Marsupials

2000

Regina (C'Wealth) vs Baladjam & Ors NSWSC Lange v Back & Schwartz NSWDC

2010

Glossop v The Queen HCA

Regular columnist for the Sydney Morning Herald The Queen v Khazaal HCA R v Michael Anthony Ryan (No.7) NSWSC

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notions and sensationalised headlines fuels cynicism; without full contextual knowledge of the incidents in question. Theres never any certainty. Thats the narrow ambit in which criminal defence lawyers usually work reasonable doubt. Thats what were there for, to create a reasonable doubt and to explore it. And it does exist, notoriously, in those cases where the media says the exact opposite there is no doubt, these people should be locked up. In the Lebanese Muslim gang rape trials recently, there were a lot of people who were accused of crimes in fair trials and got off. There was very much a hang them from the trees mentality, when in fact, they were not guilty of it, he says. This is a matter of grave concern for Mr Waterstreet, not because he is a defence barrister, but because this trend towards binary dichotomies goes against the principle of the presumption of innocence, and hence, the rule of law. You need to remind yourself of the rule of law. I do it, because it is my job. But the rule of law is reasonable doubt. You get twelve jurors in a rape case and you are a priest and its game, set and match! he exclaims, shaking his head. Mr Waterstreet believes there is a huge disparity between how the rights of the accused are posited as opposed to the rights of the victim. Increasingly cynical attitudes towards the concept of justice and the need to put blameworthiness on an individual have contaminated the principles of the criminal justice system as we are moving towards a society that encourages retribution, rather

It is this dalliance with wit that has made him the darling of many juries and drawn the ire of a number of judges. Once, he gave out awards such as the funniest juror and so on to the jury in a trial; an act that wasnt received too kindly by the judge. His chambers, near Hyde Park, have barely enough room to squeeze in three chairs as the majority of the space is occupied by piles of case transcripts that start from his desk and extend on to the floor. For a person who is perceived to be quite extravagant, his work place is very modest; a clear indication that there is a distinct line between fiction and reality. Mr Waterstreet has just come back from a full day of work in court. He looks dishevelled and extremely exhausted, yet there is a twinkle in his eye that suggests that he is still raring to go at a moments notice. Sixty two years young, he is the irreverent Peter Pan and has no thoughts of retiring: It seems to me that kids and young people now are having a lot more fun in a much more magical way than we ever did! He is quick to set the record straight that he prefers to take the unwinnable cases not because he likes to pull rabbits out of a hat, but rather, because the pressure that comes with defending an innocent client is quite enormous and tough to handle for both him and the client. Id much rather, like Rake was based on, that is, take on the impossible cases because really, there is no pressure, no one expects you to win, you are against the odds and so if you pull a rabbit out of a hat, its all plus. You lose, well, everyone says that was expected. This is a strangely poignant admission.
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To see that a person who has spent more than three decades at the bar still feels jittery and goes through the emotional turmoil while defending the occasional innocent clients restores faith in being idealistic about the criminal justice system. As Mr Waterstreet opens up about the perennial wait whilst the jury sees the light, it is clear that the embers of idealism have not yet been put out by the grains of cynical fortitude. Beneath the repartee and flamboyant exterior lies a heart that is full of hope about the potential of the criminal justice system.

You need to remind .

yourself of the rule of law. But the rule of law is

I do it, because it is my job. reasonable doubt. You get and you are a priest and

twelve jurors in a rape case its game, set and match!

This is extremely heart-warming, considering the sheer number of law students who become disillusioned with the justice system by the time they graduate. In a world that is becoming increasingly fascinated with denominations, Mr Waterstreet warns against the dangers of oversimplification and generalisation in the way cases are reported in the media. He is critical of the fact that the people are almost fed who is the victim and who is the perpetrator and this fans prejudicial behaviour against the accused as pre-conceived

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Theres never any certainty.

than rehabilitation. Mr Waterstreet is fearful of the lengths that the retributive mentality might go to. The system protects them [victims] so they are not interrogated enough. The police treat them with kid gloves; the system treats them with kid gloves. When I was younger, retribution was never part of the criminal law. It was rehabilitation, not retribution. Now, we are getting too far towards retribution as opposed to rehabilitation, he admits with sadness. This is an interesting fork in the road. Contemporary study of criminal law at Australian universities includes a focus on the criticisms of the rehabilitative system. However, is retribution the answer? Mr Waterstreet doesnt believe so and considers encouraging retribution is a backward step. It is the gaping disparity between the rights of the victim and the rights of the accused that is the major reason why he becomes extremely jittery when defending innocent clients. I think the pendulum swung too far, in my view, against the defendants, who have every right to represent themselves but

I think the pendulum swung too far, in my view, against the defendants, who have every right to represent themselves but have very few weapons at their disposal.
have very few weapons at their disposal, he says. There is a huge disconnect between events inside the courtroom and the outside world, especially where serious crimes like sexual abuse and murder are concerned, contends Mr Waterstreet, as the public is incredulously clueless about how differently people behave inside the court, as opposed to when they are outside. He encourages a more sceptical outlook. No one knows that every third divorce involves allegations of sexual abuse. If you took that as gospel then youd think the country is full of paedophiles. What should happen is that they should televise trials, so that everyone gets to see how people are, he says. Mr Waterstreet doesnt mind the intensive scrutiny that surrounds the accused in allegations of serious crimes as long as the same strict standard is also applied to the other side. This is not to suggest that there is an abundance of unreliable witnesses, false allegations and absolutely innocent defendants, clarifies Mr Waterstreet, but rather because these sorts of situations do come up more often than one might think. Human nature has the need to be natured, even if it is nurtured falsely; they [humans]
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Ask Alex
Persistent Imaginings
It wasnt until I was in my late twenties that I finally worked out where I wanted to take my career. Prior to that I was never one of those people who could dictate their career trajectory in precise terms, not even when I graduated from university and joined the workforce. I put pressure on myself; how could I make the right professional decisions if I was oblivious to what I wanted to do? I didnt want to be left behind, but the idea of embarking on a career I was unsure of certainly didnt appeal either. So I was a lost soul for a few years, floating from one role to the next, never truly satisfied. One morning, however, as I pounded the Sydney streets as a voluntary rubbish man (a part of my training for marathons), it dawned on me that I should expose myself to as many areas as possible. Through a range of experiences, underpinned by a mindset of persistence and imagination, Id eventually discover my passion. So my career to date has spanned the sport industry, ownership of my own business, university lecturing, board directorships and Chief Executive positions. From each of these roles I have learned more about myself, what I respond to and what I dont, which has inspired professional and life fulfillment. Persistence and imagination continue to be my career compass. Through my journey I have learnt to protect and encourage my confidence and believe that there is always a way to achieve what you want; you just need to recognise what it is and go for it. The discovery process can be daunting, rich in successes and failures (the more failures, the more you get to know yourself, so dont be frightened of them), but always ensure you find at least some positives along every road. Also, dont underestimate the future benefit of a job that may not necessarily excite you at the time. The skills and relationships you develop could be of use later in your career. If you find yourself in a job you dont like, its important to work out how to appreciate it. Once youve done this and earned the respect of your colleagues, thats when you should move on. Everything in life becomes a habit and job-hopping is something that can tarnish your burgeoning professional reputation. No matter what your situation, I cant emphasise enough how beneficial a mentor is. They dont have to be a colleague or friend (its actually better if theyre not), but if you can find someone who has led a career you respect and theyre willing to meet up with you on a regular basis, Im positive youll find its worth it. An objective point of view from someone who has been there and done it can make all the difference. Finding a job that youre passionate about can be as confounding as it can be confronting. Sometimes what you thought you wanted will alter and youll need to change tack. The most important thing is to ignore the artifice that feeling uncertain about your career direction is something to worry about. Feeling unsure is something that will likely come and go throughout youre career, so rather than combat it, harness it with the confidence that what youre looking for is out there waiting for you. Experiences, persistence and imagination will lead you to it. Enjoy orientation week and the start of your journey of discovery Alex Malley is the CEO of CPA Australia
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There is also a tendency for the real thing as opposed to the black letter of the law. Dont misjudge juries, they are great bullshit detectors

mercy [by the jury] and seeing

and people who say that we system just dont know what they are talking about.

feel better. We all feel better tending to their [victims] wounds, if they have been wounded. Its natural. So when there is such an allegation, obviously, we feel repulsed by the abuser. But many times, the abuser is not an abuser, he explains. Mr Waterstreet is also quick to dispel some long standing misnomers about the effectiveness of the jury system. He exclaims, partly in horror, but mostly in disbelief, when asked what he thinks of the notion that juries tend not to convict, that majority of offenders get away scot free. Thats bullshit! You are behind fourteen black
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should have an inquisitorial

balls! First of all, if you are alleged guilty of a crime, you are pushing it uphill. Second thing, if you are accused of a crime involving children, you are really pushing it uphill. Juries convict. They want to convict. They dont like paedophiles. Juries do convict and they convict a lot so its a false notion that they dont convict, he says. He is also assertive in coming to the aid of the jury system, considering it has come under severe criticism over the years. Its flawed, but every time I get exasperated by the criminal justice system, I think, thank god, its not a judge. Because judges get cynical and have their own opinions and juries are great filterers. Even though they get it wrong sometimes, they are better than anything else, he contends. What about room for rationality though? There have been calls for an inquisitorial system to replace the jury system, especially considering the possibility that juries are being increasingly manipulated. Mr Waterstreet dismisses such claims, and even though he welcomes rationality, he also urges the public to see the defendant as a human being, judged by other humans who might have been in

a similar circumstance on another day. Yes, but there is also a tendency for mercy [by the jury] and seeing the real thing as opposed to the black letter of the law. Dont misjudge juries, they are great bullshit detectors and people who say that we should have an inquisitorial system just dont know what they are talking about, he says. When asked where he sees himself headed in the near future, he returns to his cheeky form. Tom Hughes, an older barrister once told me that in law, one door shuts and another door opens. Just when you think theres no more work, theres ICAC, theres a Royal Commission, and suddenly there are inquiries, he chuckles. For all his wit and charm, Charles Waterstreet must be remembered as a welcome crusader who chose to fight for the rights of the accused in a world that is becoming increasingly cynical and disillusioned. We might not be any closer to deciphering what the Mona Lisas smile really means, but we can take solace from the fact that we have an insight into the delightfully sharp ironies of Charles Waterstreet.

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Q A &
Matthew Stutsel heads the State Taxation Practice at accounting giant KPMG. With refreshing honesty, Stutsel levels with OBITER that he went into law for the money, although he was originally more academically tempted by the idea of a career as a research scientist. After university, he spent the first 17 years of his professional life at Freehills, working his way up from a graduate position to becoming a parter. Throughout his career he has spoken publicly about his battle with depression, including a suicide attempt, and has since been an outspoken advocate of mental health issues in the legal profession. He sat down with OBITER to discuss both, and fill us in on his recent crowning as Australias champion champagne taster. What do you like about tax law? I like how analytical it is. It is essentially like law school, the client gives you a problem and you use the tools at your disposal to solve it. For this reason, though, you get to be creative; the client wants to go from A to B, but you know that you can get there going via C. You have previously commented that the culture at a business services firm such as KPMG is quite different to that of a law firm how so? Both firms have the same high expectations and do essentially the same work however the work-life balance is a lot better at KPMG. I think the reason for this is the partner:lawyer ratio; at Freehills I had two lawyers working for me, at KPMG there are 12 in my team. The reason this is important is that the clients demands can be spread across the team 46

Coffee with Matthew Stutsel


Patrick Meaney

so there is not crippling pressure placed upon any one individual. becoming lawyers we dont want to end up going back to court!

Youve been outspoken on the issue of mental health in the legal profession, are law firms doing enough to safeguard the wellbeing of their people? We must realise that law firms are pressure cooker environments with a high degree of stress focussed on a small group of individuals. By and large, the firms are doing a great job in addressing depression once it is apparent, but more could be done preventatively. It is hard though, because were all driven people and there is degree to which the impact of depression and anxiety comes from self-drive. A way of addressing this is to look at the partner:lawyer ratio in the firms. If perhaps the firms could look at revising this ratio, then the level of stress upon any one individual would not be so severe. Is it feasible to start a legal career as a graduate at KPMG as opposed to a law firm? Absolutely. We run an internship program, similar to clerkships at law firms, and we recruit a large number of law graduates. Having a law degree is a prerequisite to join my team. A background in accounting is not necessary as we have our own in-house tax training program that doesnt assume any sort of accounting knowledge.

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On his career, good mental health and the importance of maintaining a positive work-life balance

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Youve previously said that having hobbies outside the law is extremely important in achieving good mental health tell us about yours? It absolutely is. Youll find that my focus on achievement in my hobbies is just as extreme as at work. I like to win. On the suggestion of a former managing partner of Freehills, I took up helicopter flying, and Im now about half way through my commercial pilots licence. Im also certified to dive to 65m which has led to some wonderful holidays around the world. And wine tasting? Well yes, every two years the Comit Champagne runs a competition for champagne enthusiasts. It involves writing essays on champagne culture, history, production and economics; food and wine matching; blind tastings; and a panel interview. This year I was fortunate enough to win the competition, being rewarded with a two week study tour of Champagne and appointment as Australias champagne ambassador. Final words for students out there? As my uncle once told me, Set your eyes on the stars. If you achieve it, look what youve achieved. If you fall short, youve still left the ground. Ive found that the practice of law really does give people the skills and opportunities to do that, and I would highly recommend it. Most importantly though, enjoy life! Lifes short, its not a trial run. Dont spend all your life in the office; spend time with friends and family, and get out there and enjoy things for yourself!

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A N U G R A D U AT E L A W
The key to successful career development isquality education. We offer a range of programs: > ANU Juris Doctor (JD) > Graduate certificates in Australian Migration Law & Practice, andEnvironmental Law > Graduate diplomas, including Graduate Diploma in Legal Practice > Masters programs > Professional development courses > Research degrees (PhD, SJD, MPhil) Our specialist coursework study areas include Australian Migration Law; Environmental Law; Government & Commercial Law; International Law; International Security Law; and Law, Governance & Development.
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You can also choose research degrees from adiverse range of legal areas.

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Information

law.anu.edu.au

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