Legal face; The Clerkship Chronicles

Hello everyone! Another installment to ‘the clerkship chronicles’ you can read the other installment on this series by selecting the title on the side bar. I wanted to talk today about embarrassment, and a recent episode I had in the office with one of the top solicitors in th

Trust me - these files are barely
a quarter of what's there

e city.

Embarrassment is the curse of a legal junior. It does not matter whether you do something right, wrong or in between; you will wake up at one o’clock in the morning wondering why on earth you did that thing. It’s guaranteed that at least once you’ll spend the entire night reading as many articles you can get your hands on so that you never look that dumb again.

I spend much time in my senior’s office where we are meeting clients, colleagues and other legal personnel. It is an unusual experience because his office is stuffed with books, paper, and memorabilia. I would liken it to a dragon’s den of treasure – but I do not think he would appreciate the reference! So, I will not mention it, and instead say that he uses an abstract filing system.

Back to task, I, usually, am tucked in a corner of his office pouring over a client’s file or a legal tome. Everyone knows how much I love to be surrounded by books and I don’t bother to unload one book off my lap and pick up another – especially when I’m in the middle of a paper trail.

This crazy method of filing papers and stacking books is fine until someone comes in to visit. If they are staying long enough, it is pretty hard to pretend I don’t exist. So, I introduce myself, or they introduce themselves – either way, you better be prepared for some awkward shuffling.

To extract myself from the immense pile of papers and law books that are sitting on my lap, I have found that I have to scoop my hips up and then cradle the papers on my lap with one hand. If not done in a fluid motion we can have a cascade of highlighters, papers and heavy textbooks hitting the floor. This is such an awkward experience – as I then have to dart about the office trying to stop the other piles of books and files from being knocked over. It’s a bit of a whack-a-mole situation.

Universities may encourage group work
- but I can see some advantages to self study!

One time I was introduced to one of the top solicitors in the city. It was very exciting, and of course, my coordinated-self did not ‘grip’ the books before I stood up. The books flew from beneath my fingers, and my feet were covered in pens and various loose handouts before I knew it. Of course, with the world being as it is – murphy’s law applied and three other piles tipped over right next to him. Safe to say, the carpet was well hidden from view.

Social etiquette books are split on what to do when you drop something. Some suggest that you should wait for an appropriate moment before you attempt to gather what you can while others suggest that you clear the mess up immediately and apologize for your clumsiness.

Well, that’s a lot of help. In these situations, you’re basically on your own – so I’d recommend taking your cue from someone else. At least if you both do the wrong thing it feels a lot less awkward.

You may now be wondering how I reacted to completely destroying the precarious filing system that existed within my senior’s office – while standing in front of a very important lawyer. Well…over the past few months, I seem to have developed what I like to call ‘legal face.’ It is not an attractive thing to have, trust me, but it is a real thing. It is where something happens, be it funny, sad, shocking or embarrassing and you revert to an immediate frown. Except it’s not a small frown – think a grumpy cat combined with a smirk. If you’re really curious look at this.  

All in all - I'd earned some time to read
in the sun.

Naturally, at this moment all three of the people in the office, including myself, could not fathom whether this moment was funny or embarrassing-  and a uniform ‘legal face’ was the only appropriate reaction. – Why anyone bothers watching suits when there are far better ways to display the humorous realities of the legal profession I don’t know.  

After several tedious moments of pointedly ignoring the mess I had created, he shook my hand and sat down, as did I. The mess on the floor remained steadfastly ignored until he and my senior both left to get a file. Then I madly gathered them up, all the while wishing I had not chosen that day to wear my soft pink blush, because my face looked like a baby flamingo.  

I cannot pitch in on the social etiquette side of the equation – but to all future law students, be prepared. However agile and dexterous you are at home, forget about it under pressure. Possibly not the most positive message – but if I told you that you were never going to make an embarrassing mistake again when you started a clerkship I’d be a serious liar. 

The legal realities of making social media liable

There was an article in the economist today titled ‘Internet firms’ legal immunity is under threat.' It was examining the recent growth in social media companies and their accountability to the general public. It pointed to internet giants such as Google and Facebook who are highly successful in their non-physical domain.

They claim that they are not responsible for any harm that occurs outside of the internet because it is not within their control. The article suggests that this legal exceptionalism can no longer continue because the various governments and courts of the world are attempting to grow into this internet space and make claims that these medias have to police more efficiently.

Just think, several years ago
a girl writing a blog about her
academic persuasion was not just
socially strange - it was technologically
impossible!

Referencing the historical reasons for the legal immunity that social media programs were awarded, such as a 1995 defamation claim that was later dropped, the article suggests that it was too early then for anyone to imagine these online companies being so prominent in the world's economy. This is understandable as it was once unimaginable that every individual would own a computer – let alone computer, phone, iPod, and iPad.

The most recent shift in the use of the internet has meant that the previous minimal safeguards against online criminal activity are becoming too small to police this particular part of the internet. Of course, the article relies on the negative media attention given to freelance services like Uber and Air BnB to substantiate the point that these online firms are enterprising giants with more money and power than sense. 

It is important to recognize that while these internet firms have somewhat impacted the economies of the countries where they physically manifest such as Air BnB driving up the cost of affordable housing in a particular area or Uber cluttering the streets with cars.

The idea that these businesses cause more harm than good it not especially novel. The Guardian did a piece on air BnB pointing out the protests against Airbnb in New Orleans where the city council attempted to regulate the industry.

However, grassroots campaigns have not overridden the fierce determination to leave the internet a neutral space. The 1988 International Telecommunications Regulations (ITRs) grew to attempt to control the global community that built as a result of the internet. It attempted to give priority to health and safety regulations and control the flow of traffic between network operators.

The issue is that these treaties are completely ineffective. It is essentially creating one single police force to regulate the entire globe.

Some may argue that the advent of modern technology has meant that police automation is now possible,  which would allow governments to enforce a series of regulations on the global community.  However, it is important to recognize that malware has grown in tune with this new regulatory ability.

The internet is no longer a single dimension universe where websites and consumers exist in perfect harmony. Nor do scammers, trolls, and bullies use the Internet in the way that they did in 1988. Several internet gangs – most notably ‘anonymous'- have built themselves up to a point at which they are virtually untraceable by use of the usual internet.

Research all you can -
this internet phenomenon is not
getting any simpler

Several different ‘layers’ of the internet are now available for use by those with varying levels of programming and technical abilities. These new layers all have some association with criminality – and the issue is not these simple businesses making a profit off the neutrality of the open access internet, but the developing software that has created a chain of criminality that sits beneath the surface of the everyday internet.

So, while it is perfectly fine to discuss the liability of Facebook for not taking enough of interest in regulating the pre-election news and evaluating its trustworthiness, it’s entirely unreasonable to run away with this policing concept and suggest that there are automated methods by which we can create a utopian online environment. The fact of the matter is, that beyond what we can see through basic access on Google Facebook or other popular websites - the government’s ability to control how, when and why the internet is used is all but gone.

The neutrality of the internet exists not simply because of an agreement in the 1980s but because it is a virtual land in which our legal systems struggle to connect. Through the use of physical headquarters, there is some ability for the courts to connect liability to creators of products, copyright, and criminal enterprise – but this is quickly lessening as the mobility of businesses increases.

Using the average Etsy user as an example, their headquarters would usually be where they work. However, many of these sellers choose to travel frequently, meaning that their only set office space is their suitcase. Meaning that policing those sellers requires a disembodied legal authority that has no attachment to a country, government or other authority. A virtual impossibility in this nationalistic environment.

 Anyone would then realize that online neutrality is not under threat – because the ‘legal immunity' given to businesses is not a kind hand out from world governments – but an acknowledgment of the fact that human kind has a space that they are not yet able to police effectively. 

A bow for the judge

Despite my best efforts, this new year has brought about the discussion of updating my blog. I am sure that you were all incredibly bored during the holiday break – and missed my blogs dearly! However, this year signals a great change for The Underage Lawyer, both the social media and the writer.

It is our third year of blogging together, and I am very excited to introduce a new blog series. This series is going to signal a change in The Underage Lawyer, as I move from purely reading textbooks to delving into the reality of the legal world.

As I commence my second year of law, I think it is evident to most that I have graduated from the precocious wannabe lawyer. I am now something akin to a semi-lost law clerk. I say semi lost because as you will discover in this upcoming series, life as a law clerk isn’t as simple as the textbooks suggest. There is awkwardness and a distinct lack of sophistication as I negotiate the path from the textbook to the court.

Although I cannot publish names, dates or juicy case details, I can promise you to accurately details the mishaps of my daily events at court. Already in the last six months, I have made enough mistakes to make a soap opera.

Ready for the day!

Firstly, an introduction to the two most important places in a clerk’s adventure.

One; the office where my senior/boss/supervisor works. The office is important as a lot of the time I'm situated there. The room consists mostly of books and unsorted files. A desk, trinkets, and three chairs accompany this messy array of records.

Two: The courtroom. Far less time is spent here than the movies suggest, but there’s a lot of time to marvel at the excitement of it never the less. In the courtroom beware, many odd rules and rooms might land you in strife.

The first day I spent on my clerkship I was attending a case in court. As a clerk, I don’t have to stand up or say anything. I get to follow behind the barrister and hold any important notes as well as take notes for myself. It’s a lot like being a secretary because the more you can keep track of the files and where they are the better you’ll do.

If you’re ever going to be a clerk I’d recommend working on your memory retention –  the ability to remember cases is a godsend! Try to remember both cases you’ve worked in and the cases you have used as precedents. In fields like family and criminal law you’ll use the same precedents again and again, so the faster you remember them the better you will be able to follow legal arguments in court.

But back to the case, this wasn’t a jury trial – it was a sentencing proceeding. This is a far more casual affair in which the judge lays down what he will punish the convicted with, and any mitigating factors are considered (although sometimes it happens before this date).

Hanging out in the witness room
before a case!

Of course, most court behaviors must accompany this proceeding but who knew there were so many! While law books write about deference to the judge and court to show respect to the justice that is present it’s a lot different to act it out in court. The act of respect usually takes form in a bow towards the judge and this bow feels pretty awkward.

In school, I thought I knew what it felt like to bow to a judge. You bend slightly, straighten and then take your seat.

If only it were that simple!

 In a courtroom, you feel especially concerned about not making a fool of yourself. So as the excited but terrified junior I have I had no idea what to do when the judge entered the room. I knew to bow of course – but how deep, how long and in what direction?

Most people would assume that you can just copy the barristers and solicitors that surround you – but beware - they are seldom useful when you’re not sure what to do. The different members of the court room all appear to have different ideas about what they’re doing Not that they’re all vastly different, but they’ll all have varying degrees of duration, depth, and direction – so don't look to them for help!

Peppermint chocolate...I burned a lot
of calories with all that bowing!!

Older barristers and solicitors make their bow confident, ending their bow with a sophisticated nod to the judge. Most of them will have worked with the same judge several times before, and their professional relationship shows by the ease of the gesture. However, younger solicitors and barristers perform a quick head bob, much like a bird pecking for worms. They appear almost unsure if they’re meant to be bowing at all. So, when you’re trying to figure out what to do, stick with short and straightforward. At least that way you can’t be caught still bowing while the others are sitting down! 

Who knew something so simple could be so awkward?

As a first day on the job, it was a surprisingly simple thing that tripped me up. There is no need to fret if you’re just beginning your legal career in high school or at uni. We’re all going to make mistakes, and something as simple as a bow can’t end your chances forever. Remember when you’re feeling awkward you’re probably not alone – so just do your best!

Illegality and your workplace

Illegality in law

As many of my readers or listeners are those involved in small commercial enterprises, I thought it would be good to explore the doctrine of illegality. Illegality is a simple rule which is subject to many exceptions. At its core, it can completely void a contract in situations where a statute has made the action illegal.

Some may have taken this doctrine for granted believing it unquestionable that contracts for theft, drug dealing or murder were unenforceable in a contract of law. Clearly, illegal acts were the types of contracts that were intended to void with under this doctrine. However, as the society and regulatory standards have evolved so has the application of this principle extended. Leaving some enterprises, contractors and consumers at the mercy of legal interpretation.

Explaining the illegality doctrine

A statute may expressly or impliedly render a contract illegal therefore, requiring courts to make it inoperable leaving neither party with any remedy. Those who have already benefited from the contract will not have to pay back their benefits. However, just because a statute prohibits a contract does not always mean it is unenforceable. ACCC v Baxter found that; A law unilaterally prohibiting the action doesn’t void a contract. It is dependent on factors such as:

-    Language

-    Expertise of the parties

-    Scope

-    Purpose

-    Party intent

For example; if a statute prevents unlicensed homes from breeding animals it does not necessarily prevent a contract to purchase a pregnant dog. Ledlabratories Servier v Apotex Inc puts forward the statement that ‘the decision inevitably turns on their facts.’ The comment shows just how uncontrollable this doctrine can be when dealing with acts that lack the character of illegality.

A statute may encourage the courts to prohibit an action where:

-    There are a variety of public policy factors

-    On balance, it should not be enforced

The precedents in this area must be treated with the same level caution as the statutes because courts may approach the facts differently, leaving much ambiguity. The doctrine of illegality is an excellent example of the importance of courtroom advocacy. An advocate that is capable of disproving the fault of their party has effectively seduced the court for their party.

Applying the doctrine requires that consider ation for the following facts:

-    Prima facie appearance of statutory prohibition

-    Whether illegality applies to the formation or operation of the contract

-    Statutory construction weighed against public policy considerations

There is a vital difference between an illegality that prevents the formation or operation of a contract and one that has a close relationship with public policy. Courts will often consider contracts which are illegal formation or operation more favorably than those that contravene public policy. Mostly, the favorable consideration is because the doctrine is intended to prevent the degradation of law and justice amongst society. It is not designed to circumvent the commercial dealings of general businesses.

Additionally, if the fault between the parties is unequal then the term pari delicito (in equal fault) applies as the presence of fraud, undue influence or oppression prevents the fraudulent party from relying on an illegality defense.

Nelson and Fitzgerald v FJ two prominent precedents in this area support the finding by stating, a contract which is lawful and enforceable upon formation may be binding upon its operation but not those which are against public policy considerations.

If an agreement requires something illegal, it is different to if something illegal must be done to finalize the contract. The statement forms the hard rule of illegality from a Singapore Case; Tien Sew May v Boon Lay Choo. The underlying principle of the case is that while the defense of illegality and public policy isn’t ideal, it may make a contract enforceable if it is beneficial for the general public.

Essentially this means that the courts will enforce an illegal contract if  otherwise more people would suffer unjustly.

When the illegality involves fraud

The principle ex dolo malo non-oritur actio or no right of action can have its origin in fraud, is the underpinning principle of illegality. It means that the defendant will find favor over the plaintiff (the person bringing the action to court) was fraudulent or took part in some of the fraudulent act.

Where they are both equally at fault the courts will apply; potior est conditio defenditis or equal in responsibility better is the state of the possessor. That essentially means that the defendant will benefit more than the plaintiff if the courts see such a case. The holding was applied in Holman v Johnson by Lord Mansfield.

Characterizing the doctrine

This principle is unique as both parties are at fault and not just one. It arises to provide not individual justice but the continued efficacy of the legal system. Therefore, the courts must delicately balance between judging enforceability and not encouraging or frustrating a contract. There are several features that define the leniency and severity of the courts approach to illegal contracts.

The first is the Bowmakers rule; A party to illegality may recover through legal or equitable interest if a claim can establish without reliance on illegality their right to recover. The finding was also seen in part in a later case called Tinsley v Milligan.

Note, the manner in which illegality is articulated in court will alter whether the courts will view the doctrine as a defense, mitigating factor or fundamental limitation. That is essential because it will modify the impact that illegality will have.

The second important factor is windfall gains. Windfall gains is a term used to describe the unexpected benefit of one party at the expense of another. When the plaintiff is likely to receive a windfall gain despite both parties having had a hand in the illegality such as witnessed in Nelson v Nelson the court will not refuse relief as long as the claimant was mistaken or ignorant as to the circumstances which made the contract illegal. It must also be reasonable for them to be ignorant of it, i.e., Signatories to a lease under which a specialty legal statute has recently been enacted. This is interesting because it is one of the few exceptions to the general premise that ‘ignorance is no excuse under the law’.

Thirdly, it may still be the contract may still be enforced when the statute intended to protect a particular class of person for which the claimant is a member. For example, if a law wanted to protect small business construction companies it may continue to enforce the contract if it benefits the small construction company. 

Finally, where the contract's illegal purpose has not achieved the defense of illegality cannot be raised.

As you can see the doctrine of illegality is a very complex area, but with a highly restrictive application. It's nothing to worry about, but it's certainly worth looking into before you engage with any new contracts!

The High Court under the microscope: Crown Melbourne Limited v Cosmopolitan Hotel (Vic) Pty Ltd [2016] HCA 26

High Court of Australia Report and Summary

As a young lawyer living in Australia, one of the things I am most excited about is the access to justice. That means that as Australians and more generally, members of the world we have a right of access to all legal judgments passed down by the courts. Therefore, I would like to summarize a recent high court decision which I’m sure you will all find very exciting. The judgment was handed down on the 20th of July 2016.

The title of the case is Crown Melbourne Limited v Cosmopolitan Hotel (Vic) Pty Ltd. The following is only intended to be a summary of the case and will not include all the detail held by the original judgment.

The judges:

French.

 Robert Shenton French was born in March 1947 and is the twelfth and current Chief Justice of the High Court of Australia. He is from Western Australia and is commonly described as a social progressive judge.

Kiefel.

Susan Mary Kiefel is a Justice in the High Court of Australia and was born in January 1954. She left school at fifteen and is only the third women ever to have been appointed as a judge to the High Court. She’s from Queensland Australia and has a keen interest in comparative law.

Bell.

Virgina Bell is a justice of the High Court of Australia and was sworn in on the 3rd of February 2009. She was one of the first to work at the Redfern Legal Center and has a strong commitment to social justice. However, she does caution against labeling judges and prefers to allow her actions show her true beliefs.

Gageler.

Stephen Gageler is a Justice in the High Court and was previously working as a barrister in Sydney, New South Wales. He was born in July 1958 and has made a name for himself as being someone who is keen to separate himself from the pack. He prefers to write alone and firmly believes in considering public policy when determining a result.

Public policy is a general term meaning to think about the well-being and overall impact on the community.

Keane.

Justice Keane was appointed in 2003 and comes from Queensland Australia. He is often called a ‘speedy judge’ by the media. The term refers to his reputation for fast work and an eye for attempting to minimize the growing complex and expense process that is litigation. In an interview with the Australian, another judge commented that he is ‘a leader in embracing electronic filing and organization of its workload.’

Nettle.

Geoffrey Nettle is called by the attorney general one of Australia’s finest jurists. He caused some controversy as he is the oldest judge to be appointed to the position as judges are required to retire at the age of seventy. With great wit, he told an audience ‘any damage I may do now is limited.’ He’s an approachable judge with an incredible diversity of interest and experience.

Gordon JJ:

Michelle Gordon was appointed to the court in June 2015. Before her appointment, she was a judge in the Federal Court of Australia. Justice Gordon has much experience from her previous experience in the Federal Court.  She is also highly regarded by the legal community.

 The case

Parties (members) to the case:

Appellant: Crown

Respondent: Cosmopolitan

The big issue:

Crown made a statement to Cosmopolitan that they would be ‘looked after at renewal time.’ The court had to consider whether this statement meant that Cosmopolitan had a guaranteed future with the lease.

Court history:

The VCAT determined that the declaration implied that Crown had to renew the leases for five years on terms that they could decide. The Tribunal also concluded that if they were wrong, then the tenants were estopped from denying the existence of the collateral contract.

Terms:

VCAT: Victorian Civil and Administrative Tribunal (Australia)

Estopped: Refers to the legal doctrine of contract law ‘estoppel.’ That means when a promise is made that a second party relied and acted on they are entitled to have it enforced in a court of justice.

Collateral contract: The happens when one contract already exists but another promise or condition connected to that contract forms another contract – called a subsidiary contract.

Facts of the case:

Crown owns the Melbourne Casino and the Entertainment Complex. The tenants then had two leases where they operated two restaurants. In 2005 lease negotiations began and the new leases offered by the Crown were limited to five years. They also did not contain an option for renewal and only required for the Crow­­­­n to give six months’ notice to let Cosmopolitan know whether they would:

A)    Renew the lease and the terms

B)    Allow the tenant to occupy the premises on a monthly basis after the expiry date

C)    Require the tenant to leave

Part of this agreement also mean that Cosmopolitan had to pay for and run a major refurbishment. The resident’s representative did express concern about renovation costs and attempted to solicit a promise of lease extension from the crown. However, Crown was unwilling to do this.

The contract was signed in 2005 and delivered to the Crown in March 2006.

In 2008 tenders were requested by Crown for new leases. Cosmopolitan put their bids in during March 2009. Crown rejected them and required them to vacate the premises by August 2010 when their 2005 lease expired.

In 2010 Cosmopolitan brought the issue to VCAT and complained that Crown had suggested to their legal representative that they'd have an extra five years of tenancy on their lease. They said that the refurbishments would not have occurred without this promise.

They claimed two things:

1.    The promise created a collateral contract

2.    If it did not create a collateral contract, Crown was estopped from not extending their lease.

Both claims have the same effect. The Crown would not be able to refuse to extend the lease.

VCAT did not find these representations in the terms but did find a statement that gave rise to a collateral contract. They rejected evident from Mr. Zampelis, Cosmopolitan’s legal representative but did accept evidence from Mr. Zampelis about assurances sought from Crown about a longer release term. The key piece of evidence was a handwritten note claiming that Cosmopolitan would be ‘looked after’ at renewal time.

VCAT’s original reasoning:

Promissory and Proprietary Estoppel

According to the High Court, VCAT erroneously reasoned in regards to the promissory statement. The promise to renew a five-year lease implied that the renewal would be for the same period. VCAT said that this was the only term that the Crown had to uphold. They did not agree that similar terms and conditions to the 2005 contract had to be applied. The High Court infers that this kind of reasoning is risky as commercial enterprises cannot always be trusted to be fair under circumstances like these.

The enactment of estoppel requires a precise and unambiguous statement; Low v Bouverie. This requires that the person who they are addressed to would understand them in a particular way. They must be capable of misleading a reasonable person in that same situation to believe something that is not accurate. In this circumstance the statement ‘looked after at renewal time’ is not capable of conveying that Crown would extend the lease.

Therefore, the estoppel doctrine does not apply to this circumstance due to the ambiguity of the statement.

Collateral Contract

Hospital Products v US Surgical Corp; a representation made in the course of negotiations may result in an agreement collateral to the main agreement if it can be concluded that the parties intended that representation to be contractually binding or if it has that quality of a contractual promise. The Supreme Court of Victoria said about this case the statement ‘looked after at renewal time’ was too ambiguous to be inferred to mean a contractually binding promise to give an extra five years of lease.

The Supreme Court also said that the statement in question lacked specificity and failed to outline how exactly the Crown would fulfill the promise.

Result:

There was no promise, and there was no contract. The lease was lawfully terminated, and Cosmopolitan are not entitled to a renewal or damages.

What does this mean for me?

It doesn’t add much to the doctrine of estoppel, but overall it does tell you that if you’re in a negotiation process with someone you should always make sure that you’re both being specific. There are a lot of court cases similar to this one where ambiguous statements led to prolonged legal conflict that is often costly and ineffective.

If you’re entering a contractual negotiation like the one above it is advisable that you enlist the services of a registered legal practitioner. You may think solicitors are expensive but court costs are higher!

Highlights from some of the judges:

Gaegeler:

-    The lease did not operate to confer a contractual discretion which is circumscribed by the collateral contract…instead to impose a contractual obligation on Crown to give notice of a decision to be made by Crown outside the terms of the lease.

-    [Crown’s case] assert’s want of contractual certainty [and] contractual completeness.

Keane:

-    The categories of promissory and proprietary estoppel serve a common purpose of protecting a party from a detriment which would flow from a party’s change of position if the assumption or expectation that led to it were deserted. (Giumelli v Giumelli)

-    It would reduce the law to incoherence if a representation to uncertain or ambiguous to give rise to a contract of a variation of contractual rights and liabilities were held to be sufficient to found a promissory estoppel

Nettle:

-    Principal question…is whether the court of appeal was correct to remit the matter back to VCAT on the basis that Crown was estopped from departing from the tenants assumption…that question should be answered no.

-    [about the application of promissory estoppel] The notion of some “lower limit” of the “great area” was misconceived {emphasis not added}

If you'd like to read the judgement in full it is available online here.

Or you can read other high court cases online here.

No Way Bob Day!

[[TRANSCRIPT]]

 Bob Day’s barrister, Peter King, received a warning from Chief Justice French on the third of may against making speeches with politically charged references in front of the high court. He was responsible for presenting, the cross-bencher, Bob Day’s constitutional challenge about electoral change for the upcoming election process to the High Court.

Mr. King is helping Senator Day launch a constitutional case against the Australian Parliament contesting the electoral reforms designed to prevent independents running for a position in the Senate who don’t represent the Australian general public from receiving a seat. Day complains that the new system would unfairly skew the thousands of votes for minor parties as the votes would quickly be thrown away under the new regime. His fears are that it would only grow Australia’s two-party government issues.

Policy discussions - best reserved
for university lecture halls?

King’s scolding arose when he compared the laws, as equal to dissuading signs out the front of polling places. Chief Justice French rose to action warning King to “go to the nitty gritty rather than have speeches that are best made outside of this place.”

 Legal challenges are very serious and formal affairs. In the entirety of Australia’s history, there have been less than one hundred constitutional challenges. Since the high court opened in 1903, the number of cases the court has seen are incredibly small averaging sixty a year since commencement. Again, the number of constitutional challenges are even lower, meaning they are marked down in Australia’s history for special consideration. The minuscule amount of challenges only leaves more room for humiliation as it is certain that Mr. King’s scolding in front of the high court won’t be quickly forgotten.

The policy reform, which is the subject of the legal challenge, is trying to prevent small senators from creating preference deals with other parties to win the seat in Parliament through the preferential voting system. This voting system works so that political groups can show voters how to choose senators that best support this policy in descending order. The plan was put forward after it was debated in Parliament for forty hours, revealing just how contentious this decision is.

The challenge in the high court has prevented the South Australian electoral officer and federal government from issuing the next round of ballot papers needed for the Senate election, which was scheduled to be held on July 2.

In detail, the new policy intends to eradicate the process requiring below the line voters to place their preference for each listed and instead choose their top twelve favorites for the seat. Party logos would also be included in the paper simplifying the process for less politicized individuals. It was seen in a previous election that taglines printed on group voting papers can be very misleading, this will be eradicated by printing logos onto the ballot paper.

Prime Minister Malcolm Turnbull has argued that the new legislation was good for democracy as it will encourage voters to vote for at least six senators above the line individually. But if their preferred candidates are unsuccessful then their votes will be entirely unsuccessful.

If anything the new policy makes
brilliant brunch conversation!

As beneficial as the changes may appear senators are warning that these changes violate the principle of representative government. Day body proclaims that voter’s rights were taken away and today no one is a step closer to restoring those rights. This bold claim adds a frightening spin to the turn of events but in reality, Commonwealth solicitor-general Justin Gleeson has criticized the senator for speaking out and dismissed his arguments as having a considerable weakness.

Gleeson has pointed out that if Day’s case is accepted that it would invalidate all voting since 1984. Following that train of logic then Australia would not have had voted in a valid Senate since the last election before 1984. This would put Australia’s legal and political system in serious jeopardy as it would invalidate all legislation.

According to the Constitution, no law can be passed except on agreement by both houses – therefore is the Senate is eradicated so is all of the laws that have been passed in the last thirty years!

Additionally, the case outlines that the policy interferes with section seven of the Australian constitution that claims senators shall be composed of senators for each state chosen directly by the people of the state and that this means that every person’s vote must directly go towards selecting one candidate.

Constitutional law experts from the University of New South Wales have applied legal reasoning and have clarified that governments are allowed to use a range of electoral systems to satisfy direct election. Day’s loss is that the constitution is ambiguous about by what means the voting has to be direct. As a consequence, he cannot claim that one form of voting is more direct than the other as long as they’re both direct.

To be honest, I think we should all
just have a calming cup of tea.

Overall, it seems that King has set himself up for an uphill battle as he failed to present an outline of his argument to the High Court before his presentation.

The courts are still examining the case as we speak, and I look forward to hearing more about this constitutional challenge…as unlikely as Senator Day’s success may be. 

Five tips to make your next 'oh no!' situation an 'oh yes!'

Hi, I’m sure you’ve all figured out by now that a lot of my blog posts come from my experiences, and there's one experience I haven’t yet explained.

The business cards I designed
for the event

To be plain, today I went to a job fair thinking that I was going to pick up some internship flyers, shake some hands, smile nicely and go home proud of myself.

Unfortunately for me, this was not the reality.

Normally I’d deny any awkwardness about turningup to an event that was entirely unintended for my age group. But I’ll admit, when I realized that I wasn’t doing what I’d expected I was going to do I wanted to turn around, walk out and deny I was ever there.

Because it was horrible. I thought I’d doomed myself to the awkward admittance of, ‘nope; I’m not qualified in the slightest. But yes, I did just waste your time on me.’

Nothing gets rid of bad thoughts
like a good cup of coffee!

As I’m sure you’ve guessed by now. I didn’t walk out. Instead, I did five things that turned the tables around in my favor.

1.    Change your mindset

I talk a lot about positive thoughts and headspace on this blog. But with lawyers quickly becoming synonymous with depressed people in suits I can’t stop reiterating this message ‘your thoughts change what you see.’

When I first entered the show room, I panicked. Everything I thought was negative, ‘I’m not qualified.’ ‘I’m wasting their time’ ‘I should go.’

The reality was, I wasn’t wasting their time. Yes, I have most definitely learned to read properly the information flyer before deciding to rock up to things. But one of the greatest things about being in a situation where you can 100% not compare to the rest of the people surrounding you is that you get approach what they’re for in an entirely unexpected fashion.

2.    Think out of the box

Staying on the concept of changing your thoughts, one of the companies I was interested in actually had a requirement to have at least seven years work experience. The fun thing you might not have

A bit of color can get those creative
thought processes going!

picked up on if you hadn’t been desperately grasping at straws to make your pitch sound half decent is that it doesn’t matter if this experience occurred concurrently.

A few minutes of counting and scrolling through my linked in later and I was armed with seven years and four months’ worth of experience.

You’d be surprised how much you are qualified. I’ve worked in various capacities on government boards, youth groups, retail agencies, charities and law firms, but I’d never thought to count the time I spent doing them. Once I did it was clear I could compete with the post grads – at least on some level.

3.    Focus on making your weakness your strength

If you do as I often do and jump into a situation without really thinking about you’ll be familiar with the gut-wrenching realization that your biggest flaw is staring you down. In today’s experience, my biggest weakness was that I don’t have a degree.

I’ve studied courses but never actually graduated. This made me the most unqualified person in the room. Again it’s almost like you have to flip your brain into reverse. Look at what you can offer from a different angle.

Rather than hiding the fact that I didn’t have a degree it was celebrated. I went from looking for

It's a shame drinking coffee
can't be listed as a strength!

internships to work experience – a minor detail, but it gave me a chance to work with the representatives there and get to know the companies better.

4.    Figure out what your original objective was

A lot of networking events are entirely focused on gathering contacts and putting them in your address book. That’s not what I mean about your objective.

If you’re going to a networking event, then you’re going for a reason. For example, you might be attempting to gather information about the individuals within the industry you intend to work in. Or you might be attending the event to discover your potential in a new pathway.

Your objective is vital to making a success of the day. Because at the end of all this the last thing you want to do is leave. It’s important to young people that we understand ever opportunity has a cost. This cost can be beneficial or detrimental. And let me say it straight out, meeting people in the industry you’re interested in is never detrimental.

You might never see them again, but still you will have had a conversation and gathered more information about what your future career might be like. The only loss you could make by walking into a room where you feel out of your depth is by walking in and then walking straight out.

Having a clear understanding of what your objective is will help you to navigate your way through the event and pitch conversations away from whatever it is that’s making you feel uncomfortable and towards a more productive result.

5.    Identify and analyze

When you realize that there’s something in the room that wasn’t what you expected you need to identify and analyze.

First of all identify the issue. Is it something that is going to prevent you from achieving your original objective? For example, if you’re under qualified – is that going to stop you from making contact with potential future employers?

And look! It was successful day
after all.

The answer, whatever you may think is no, if you are on track to getting that qualification, then in all seriousness it’s just as important for you to be meeting these groups now then later.

Secondly, you need to analyze what the rest of the room is doing. Do they look prepared or casual? When you’re already feeling ostracized by something, it’s best to try and find a common factor between you and the rest of the room’s population.

Those are my five simple actions that you can do to take control of a situation that feels out of control. I know it’s hard to cope with being under qualified or having some other factor that makes the entire event seem daunting. But the reality is that no professional can ever have all the qualifications and all the preferred characteristics.

The modern professional knows three things to get over those first little hurdles on the way to getting an internship; innovate, adapt and when in doubt – redirect!

Why I chose to become the underaged lawyer

Oh my goodness look! I can post gifs on here!

My blog title often amuses the many people I meet. They associate being underaged with youth and innocence. I too do not separate these qualities from youth. Childhood and young adulthood feature the growth of curiosity

I believe one of the many characteristics of today’s children is that they suffer no fools. Many children state it out how they see it – I’m sure you’ve all heard ‘that’s dumb.’ Or ‘Why not just tell them no?’. The simplicity of youth is something I wish never to forget as a lawyer. 

Also, I chose underaged because being underage means that the law of the world cannot restrain me. No, I don’t mean unconstrained in the strict sense of law. I mean unconstrained in that the formalities of the world seem as flexible as a piece of string.

 If I don’t agree with it – why not say it? If there is a war- why not tell them to stop fighting?

 The older an individual gets, the more constrained they appear by the realities of the world in which they live.

Just because a lawyer's work isn't fun
doesn't mean I cant have a flower to make it better!

The role of a lawyer is always to dodge these realities. I see no human rights lawyer that looks at the world and thinks ‘well that’s the way it is, and that is the way it always will be’. I like to think of lawyers like a relay team. We all acknowledge that it should be one way and set about in a relay race to make it happen. Think back to the history of law – how did it develop? Because one day one person said hey – we should have a way to fix things when they were unfair!

And it took a long, long time to get close to what we have today – and even now there are still issues – yet we started as a group on a venture that appeared impossible. The judges that started the law were effectively holding onto the spirit of youth. An undaunted challenge to the future to improve things in the way that they morally should be. 

It is impossible to propose that a happy young person would not aim for a better tomorrow but it is not unprecedented that the contented mature person will merely seek to keep the peace for the present. I am now studying law and global policy, and often I find myself pulling back on proposing theories of change merely because I see troubles with current political sensitivities. However, I have determined to stop holding back. Present day sensitivities should be mere passing thoughts to proposals for future benefit. 

It is a selfish proposition that any change must occur within my lifespan. Rather I must consider myself a simple member of a relay team for a change. If I wish to see the globe operating with a democratic government, I must prepare myself to see turmoil and for the future youth of the world to see the success. 

Although Lord Denning never let go of that
underaged mindset - question all assumptions!

It is only in the mind frame of someone who is free from the constraints of the academic and political world that propositions for change can occur. It is undoubted that in present times they must be altered to minimize the conflicts which are faced, but they should never be modified during the future to cater to the conflicts of the present.

It is common knowledge that wars end. Whether the political sensitivities remain are purely up to the generation of today. I can see that as our world become interconnected and we suddenly have friends in every country across the globe political conflicts cannot remain. What person would hold a grudge against the country in which their beloved aunt lives? Or where a favourite actor spends the majority of their time? Our current views of states and borders are rendered irrelevant by transnational communications leading to the only conclusion – we must ignore the realities of today to develop a functional future.

I am currently writing an essay about creating a global government. I will admit that I have been torturing myself by attempting iron out exactly how differing cultures and ideologies could mix until I realized that was simply my perspective. 

I may view some cultures as roadblocks to change – but I do not see their population as road blocks. As communication and personal expression take the reins of country control so must these ideological setbacks fall away. Young people of today have seen the devastation of war and the crippling effects of food shortage, of racism, land loss and the importance of human dignity. 

Each of them represents a generation that has never considered a postcode or border when communicating with someone else. The conflict of the future will not lie with countries, and it is critical that as lawyers, businessmen and people of the world, we make plans to deal with a generation that does not understand there is a separation between countries. 

Is it sad to admit I've never actually used a
post code except in online forms?

After all, for my generation, where is the separation? I can see my friends in Italy, follow my auntie in England and enjoy the acting ventures of Benedict Cumberbatch all from one place. I have no understanding of the borders between countries – I’ll admit it took me time to understand why we had to draw lines. Yes, there is a great conflict in many countries, and not all people will view others in equal stead to themselves. But I propose the vast majority do and as time goes by the majority can reach out to the minority to develop the ability for the world to grow as a single community free from conflict and turmoil in order work entirely for the global benefit of all members.

 As overly confident as the proposition may appear I’d like to invite you to consider what it means to be a young person today. Think about having no understanding of having to wait to communicate; there ’s no need for physical contact in a fight – most ‘brawls’ between youth happens online. It’s purely verbal. In the future, the value of physical contest will not compare to the value of the written word. Global governance will become our centerpiece for the new war – taking form in the diplomatic art of discussion.

And since we're at the end of the post we can talk about fun things ^^^
meet my plant family; marcus the chilli and george the italian basil.