OFFICIAL NEWSPAPER OF THE STUDENTS OF MELBOURNE LAW SCHOOL

DE MINIMIS
MONDAY, AUGUST 20, 2012 Established 1948; Revived 2012 VOLUME 2, ISSUE 5

Asylum Seeker Policy: Saving Lives with Labor

The Expert Panel on Asylum Seekers led by former Defence Force Chief Angus Houston delivered its report on Monday 13 August, recommending circuit -breaker proposals for asylum seeker policy and causing a legislative rush to welcome in the new parliamentary season. The focus of the recommendations and the single most important priority identified by the Report is a rebalancing of policy settings to ensure that no person arriving by a boat is advantaged over another who pursues a regular migration pathway. The proverbial stick used to achieve the rebalance, at least in the short-term, is offshore detention for indeterminate periods of time. The Government was very quick to amend the Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2012, a bill intended to circumvent the High Courts finding against the Malaysian Solution in the Plaintiff M70 case, and place it once more before Parliament. It passed the House of Representatives on Wednesday, and the Senate late on Thursday night. The 2011 Plaintiff M70 case held that s 198A(3)(a) of the Migration Act set out specific kinds of obligations and protections that must have been met in fact, before the Minister could declare them to be have been met. Unsurprisingly, the new bill effects a full repeal of s 198A, replacing it with a set of rather comprehensive provisions, ss 198AA-198AH, which provide a much greater latitude in declaring a country, by a disallowable legislative instrument, to be a regional processing country. The reasoning in Plaintiff M70 turned partially on the legislative intent behind s 198A to ensure that removal processes conformed with international obligations to refugees and asylum seekers. That is now repealed and replaced with provisions, the express purpose of which is, to legislate that appropriate locations for offshore processing need not be determined by reference to the international obligations or domestic law of that country. Perhaps it is also apposite to note that being even a slightly left-wing critic in modern Australia is a depressingly fulltime task. It is this replacement of s 198A that led Andrew Wilkie MP to intone in Parliament last Tuesday that this is a z humanitarian crisis, and it escapes me how anyone in this place could seek to implement any solution not underpinned by our lucky countrys moral framework and our obligations, both written and implied, as one of the original signatories of the United Nations Refugee Convention. Julian Burnside QC was likewise unimpressed, reflecting that underneath all of this, the most profoundly depressing aspect ... is that the Government is so enthusiastic about the idea that we really must prevent people from coming here and asking for our help. For Burnside, the deterrent policy and the rush to implement it demonstrates not so much a concern for lives lost at sea, but a disregard for the conditions those people seek to escape. Where there might be the slightest glimmer of hope is in the Panels recommendation that the way forward is not merely through isolated bilateral agreements, but through regional capacity building, involving increased, multilateral engagement with regional governments and NGOs, and increased funding for the UNHCR. If we have to accept that onshore processing will never be and that people smuggling is the central focus (now written into law) of our asylum seeker policies, then perhaps the most circuitbreaking claim in the Report will be its most obvious: National policy settings alone cannot resolve the challenges that currently confront Australian policymaking, and the Australian community generally, in relation to asylum seekers using dangerous irregular maritime means to claim protection. Everybody should read that line. People should talk about it in pubs and clubs and over romantic dinners and children should read it before dessert and again before bedtime on Sundays and anybody who has ever yelled Stop the Boats! or We will decide... should have it tattooed across their knuckles. Doug Porteous

ASK AGONY AUNT: DO NOT PANIC

This week our in-house agony aunts received several letters from students tearing their hair out because of the clerkship application process and the inevitable stress it causes. We at De Minimis wish you to know that being calm is the best thing you can do for yourself; if you want something enough, then dont give up!

Dear Panicked As there are so many students that applied for clerkships, some rejections are inevitable. Hopefully you do get some interviews, but even if you dont, it wont be the end of the world. There isnt just one easy route to becoming a lawyer. Make an appointment with a careers counsellor and have them look over your CV and cover letter, research other firms or internship opportunities, and bolster your extracurricular activities for your next applications.

Even if it doesnt work out for a clerkship, your hard work will pay off if you keep applying and trying other avenues for experience and employment. Sincerely, Aunt Myrtle

Dear Aunts I submitted sixteen clerkship applications, and already have four rejections. I dont know what Ill do if I dont get a clerkship! Please help! Sincerely, Panicked

De Minimis does not recommend getting a tattoo that says Stay Strong but does recommend that you stay strong

Monday, August 20, 2012

[VOLUME 2, ISSUE 5]

Butt It Out: HCA upholds Plain Packaging legislation

THIS LEGISLATION IS CONSTITUTIONALLY VALID is what I want etched onto my gravestone in the event that I die whilst halfway through my Torts readings. Its also poetry to the ears of the Gillard government this week, with a High Court decision upholding the validity of the governments plain packaging laws. The decision, popularly viewed as the governments way of saying put that in your pipe and, oh, this is awkward, um paves the way for cigarettes to be sold in plain packaging later this year. From December, all cigarettes in Australia will have to be sold in olive-green packets with no branding or logos on them. The decision could potentially have a domino effect on tobacco control legislation around the world. British American Tobacco, Japan Tobacco International, Phillip Morris, and Imperial Tobacco Australia had fiercely argued in April that the governments plain packaging laws were tantamount to an acquisition of their trademark property, without the provision of adequate compensation. Particular provisions of the Tobacco Plain Packaging Act 2011 (Cth) were, they argued, contrary to the restraints of s 51(xxxi) of the Constitution because the acquisition had been made on unjust terms. The Commonwealth stubbornly resisted this claim, stating it had the right to regulate products that were harmful to human health. A majority of the High Court found in the governments favour, with the statement: At least a majority of the Court is of the opinion that the Act is not contrary to s 51(xxxi). The battle has been hard fought between the government and big tobacco, with Attorney-General Nicola Roxon front and centre of the governments campaign for better public health. Ms Roxon has since stated that the plain packaging laws will remove the last method for tobacco companies to promote their products, and would prove to be a vital preventative public health measure. The decision has garnered much international interest, with the World Health Organisation congratulating Australia on its success in exposing the Achilles heel of the tobacco giants. It has also given a boost to countries such as the UK and New Zealand, who have considered taking similar legal steps to implement plain packaging. However, the legislation is not in the clear yet. Countries such as the Dominican Republic, Honduras and the Ukraine intend to challenge the legislation through the World Trade Organization, arguing the laws run counter to Australias key global trading obligations. The government will also need to prepare itself, as tobacco company Phillip Morris pursues arbitration proceedings via the UN Commission on International Trade Law. The full reasons for the decision will be published later this year. Christine Todd

Laws Without Borders

The investigation into Standard Chartered has been spearheaded by New York authorities. At the US federal level, the Dodd-Frank Wall Street Reform and Consumer Protection Act was signed into law two years ago. This piece of US legislation provides for extraterritorial jurisdiction for US courts over actions brought, where US investors or markets are harmed by actions outside the United States. It potentially subjects foreign non-bank financial companies to prudential supervision in the US, if the foreign company is considered by the US regulator to be systemically significant or interconnected to the US economy. Moreover, US anti-corruption laws reach beyond US borders. Rupert Murdoch's US-based global media group News Corporation is co-operating with the US Department of Justice in looking into possible breaches of the US Foreign Corrupt Practices Act in relation to allegations that its now defunct UK newspaper subsidiary News of the World paid UK officials for information, something prohibited by the Act. In 2010, Daimler pleaded guilty in the US to corruption charges after admitting to paying tens of millions of dollars in bribes to government officials in at least 22 countries. The bribes were not paid in the US, yet the German company agreed to pay US authorities $185m to settle the case. While few have sympathy for corrupt practices or the financial fudging of big banks, not everyone is happy about the long arm of US law stretching all over the world. Lawyers, however, will doubtless take advantage of the thicket of new and increasingly enforced regulations to make themselves indispensable to any company with an American connection. Bronwen Claire Ewens

In early August, Standard Chartered, a UK bank, was accused of violating US law, but not because of anything it had or had not done in North America. Instead, Standard Chartered stands accused of hiding transactions for "Iranian financial institutions" that were subject to US economic sanctions. The bank denies the allegations. The case is just the latest example of how the US has been extending its so-called extraterritorial powers in recent years. The mere fact that money usually US dollars at some point flows through New York for example, suffices for New York to assert jurisdiction. In the case of Standard Chartered, although the dollar transactions originated and terminated in European banks in the UK and the Middle East, they were cleared through its New York branch. It has been investigated; not just by the New York State Department of Financial Services, but also the FBI, the US Treasury, the Department of Justice, and the Federal Reserve. According to David Pitofsky, a member of the law firm Goodwin Procter's litigation department: As long as dollars are involved, they will eventually touch a US institution. Even if a transaction is done, say, in Japanese yen, if a blip in the system turns these into dollars - however briefly - that in theory could mean it falls under US law.

De Minimis

Monday, August 20, 2012

[VOLUME 2, ISSUE 5]

LEGAL THEORY WEEK

L IS FOR...
Late Starts

Some students are thinking a bit harder about the law this semester in the Legal Theory Workshop. McKenzie Post-Doctoral Fellow Dr Lael Weis (who goes by Lu) started the workshop last year with help from Professor Adrienne Stone and the Centre for Comparative Constitutional Studies. The workshop meets most Fridays at 2 p.m. in Room 221 of the MLS, where authors can present drafts of their latest legal writing for constructive criticism. The sessions are open to faculty, staff and students. Now in its second year, the workshop offers a range of engaging topics, from the meta-ethics of political theory to issues of judicial interpretation. During each workshop the author is given several minutes to speak, followed by around 10 minutes of feedback from a commentator, who is usually a faculty member. Then there is a question-and-answer session open to all attendees. JD students enrolled in the workshop write response papers addressing the strengths and criticism of the presented work. Lu explains that the experience is beneficial for students interested in developing their skills of academic criticism and legal scholarship. Lu said the workshop fills a hole existing in the JD curriculum, providing students a different level of engagement with legal scholarship. The workshop is something familiar to most American law schools and graduate students, Lu said, who completed her doctoral studies at Stanford University in the US before joining the MLS in July 2010. Lu added that students feel more connected and benefit from talking to others in the field. Lu said the workshop idea was hatched two years ago, with encouragement from the administration and the Centre. The next workshop will be at 2 pm on 24 August 2012, with Dr Dale Smith from Monash University presenting his paper Are Judges Opportunistic Interpreters? MLS judge-in-residence the Hon. Justice Margaret Stone will comment. The Legal Theory Workshop website (https://sites.google.com/site/legaltheoryworkshop/) provides the 2012 academic year schedule and more information about the workshop. Dean R. P. Edwards

I visited the student centre last week, and while I was waiting in the cue, I noticed someone (who will remain unnamed because I dont know the persons name) getting his readers for Corporations and Remedies. Im not the most studious JD by any stretch, but to only be collecting readers in week 4 is like first going to your teams game in August when theyre in the top 8; is your heart really in it? Did I pull that footy reference off? Hell yeah I did, like Buddy from 50 on the flank. Did I pull that footy reference off? Hell ye- okay Ill stop. But its not just these slackers that are starting late this year; it seems most JDers are late to the party this semester. From what I can tell, few people are reading, class absenteeism is high and a funny observation to round it off to a list of three. Last week I was in a conversation where the massive nerds of previous semesters were trying to one-up the others as to who had done the least work. Where is the student body going? Soon, instead of attending STS tutes, students will establish regular liquor on the law lawns sessions and people will call it LLL because its a clever alliterated acronym! Or maybe even abbreviate it to 3L! Or worse, L3! That would actually be awesome. Whos running for LSS president this year? See me if you want to talk election promises What is it that sends morale so low in August? Is it the post-law-revue slump? Is it the winter weather affecting mood and skin tone? Is it the encroaching realisation that another year is soon to end and yet again youve never achieved your life long dream of meeting Ronan Keating and telling him he has the voice of an angel and the eyes of a Somalian lion? Oh wait, theyre all just my personal disappointments. Even Im late to pick things up this t ime of year! This column has been terribly average for the last 3 weeks! On that note, I booked in a meeting last week to see a publishing editor. Dont expect the quality to increase though because I didnt get much out of the workshop I rocked up 55 minutes late. Charles Hopkins set up a Twitter account in April of this year, but is yet to tweet anything. Follow him at @mylifedoesnotwarrantglobalbroadcast.

De Minimis

Monday, August 20, 2012

[VOLUME 2, ISSUE 5]

THIS WEEK IN LEGAL HISTORY

August 22, 1864 Conventions signed First Geneva This Friday will mark the 148th anniversary of the entry into force of the First Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field 1864 . The First Geneva Convention 1864 was a seminal instrument defining the rules of international humanitarian law, limiting the devastating effects of armed conflict. The international treaty is one of four Geneva Conventions which together define the standards for the humanitarian treatment of victims of war, such as civilians, aid workers, wounded soldiers and prisoners of war. At present, the umbrella term Geneva Conventions encompasses four updated and revised treaties in addition to three protocols. The treaty was largely borne out of the advocacy work of Henri Dunant, a Swiss businessman and aid relief activist who wrote about his experiences as an aid worker during the 1859 Battle of Solferino in Italy. He had arrived in Solferino on the very day of the battle and was shocked at the total disregard of life shown towards the thousands of wounded and dying soldiers on the battlefield. Ultimately, he convinced local civilians to provide assistance, personally funding the medical expenses and facilities which the town could not afford. After returning to Geneva, he published a memoir about his experiences and advocated for humanitarian efforts at the Geneva Society for Public Welfare. In the following years, he became one of the founders of the International Committee of the Red Cross (ICRC) along with others. The ICRC soon recognised that they would require a body of rules to govern the conduct of themselves, combatants, and States during periods of armed conflict in order to effectively carry out their humanitarian efforts. On August 22, 1864, 12 European states congregated in Geneva, Switzerland, to sign the First Geneva Convention. The inaugral treaty provided for basic standards for humanitarian conduct during wartime, including articles providing for the protection of establishments treating wounded and sick soldiers, the impartial reception and humane treatment of all soldiers, the protection of civilian aid workers and the recognition of the Red Cross symbol as a means of identifying aid relief workers. The articles were later expanded upon in the subsequent Conventions and revisions were made so that the treaty reflected new developments in military technology and the changing nature of warfare. As a result, the revised version of the First Geneva Conventions currently in force, entered into force on 21 November 1950 following the aftermath of World War II. Annie Zheng

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