Australian Court Series ; R V Adams

R v Adams (No 7) [2017] NSWSC 179

This case is interesting as it is a case taking place in 2017 for a murder in 1983. Unlike some criminal acts murder has no statute of limitation – or expiry date, after which the prosecution can no longer prosecute. The maximum penalty for murder, all around Australia, is Life imprisonment, so that is the penalty that many heinous crimes are given. However, as this is a murder from 1983, the court had to apply the law from the time. This was that the imprisonment for life was a mandatory sentence. At [4] Justice Button acknowledge that ‘the maximum penalty as it existed in 1983…speaks for itself with regard to the gravity with which the unlawful taking of the life of a fellow human being…was and is assessed by parliament and the community that it represents.’

The case facts, as recounted, are that in 1983 the offender offered the deceased a lift home. The deceased was drunk and had believed the false representations of the man that he was a police officer. He then drove her a short distance away, and possibly during intercourse – the facts are not agreed upon – he crushed her windpipe, killing the deceased. Her body was then stored in the boot and the offender took steps to clean the evidence. There was evidence adduced at trial that the offender had a history of strangling sexual partners who refused his advances.

This case is interesting as the judge was not required to determine guilt but relative seriousness of the offence. There were two opposing facts of the case that made this determination difficult the first was that the case was more serious because the offender had invaded the woman’s sexual autonomy and the murder took place during an act that was obviously dangerous to human life given her own level of intoxication.

The second fact that goes in favor of the offender is that the murder was unintended. There is a general acceptance that premeditated, assessed and planned murder is of greater seriousness than a murder occurring in the spur of the moment.

That being said at [16] the judge determined that while I appreciate the force of what defence counsel has said about the breadth of the concept of felony murder, this offence against a young woman in the prime of her life, simply for the sexual gratification of the offender, cannot be assessed as anything other than extremely grave.’

When sentencing the judge took into account the following;

-        Plead not guilty, resulting in no utilitarian discount

-        No mitigating factors

-        Has not shown remorse

-        Has not accepted responsibility

-        Previous rapes of similar description

-        His age is now 64

-        He has not been convicted of anything since 1974

Around the world legal courts have also become live to the issue that the considerable delays between getting arraigned, trial and sentence amount to some degree in delay of justice. In Canada it was determined that that a four year delay would be sufficient to constitute a delay of justice. However, this has not yet been determined in Australia.; R v Jordan.  

In this case it was discussed from [29-31] how the delay of justice proposition may apply to the offender. While he acknowledged that there was a strong between the murder and the charges, it was not by process of the law or deliberate delay of the authorities rather, and to use his honors own words, the matter is not to be equated with a case in which the charging of a person is delayed [or] he or she exercises his or her right to silence. Instead the delay in the resolution of the matter is to a large degree, attributable to the offender. [31]. It was determined that the delay should reflect to a limited degree the sentence.

Further to the determination of sentencing, it became at issue how the mandatory sentence of life imprisonment was to be treated. While it is no longer mandatory, it has come to be accepted in the court that the law does not operate retrospectively and the law that is in place at the time of the offence is that law that must apply to the offence; R v  Magnuson. However, it was hardly a year later that the law was changed. Meaning that the mood of the times when the crime was committed was not significantly different. Moreover, his honor acknowledged that it was general practice for crimes of a similar nature to serve 11 to 10 years before being released on parole. This inferenced a standard of treatment that the offender may have appealed to.

Then a similar case, not committed by the offender, R v Fleming was raised by defence as a potential sentencing guide. It accounted for an imprisonment of 21 years with a non-parole period of 16 years.

It was also accepted that the sentence must reflect the time in custody spent prior to sentencing.

Final determination factors

There was a lack of

-        Intention to kill

-        Multiple murders

-        Prior murders

-        Not a contract killing

-        Act of heinous cruelty, indignity, torture or mutilation

This are important to note that they are not present because they are standard elements in todays courts, where the ultimate sentence is imposed. It was for that reason that his honor was not satisfied that a determinate sentence would fail to reflect the gravity of what the offender has done; s61 of the Crimes (Sentencing Procedure) Act. [54].

In Australia, because it is the adversarial system victims aren’t often invited to the stand to explain how things have impacted them personally. That being said the courts invite victim impact statements to be submitted to the judge. This is something that the court may consider when determining the sentence that is given to an offender. They are not compulsory and only discuss how the crime has impacted the

 individual;

-        Physically

-        Emotionally

-        Financially

-        Socially

You can read more about them here.

His honor acknowledged that the two sisters who submitted impact statements spoke movingly of the pain that has been endured for decades as a result of the disappearance of the deceased...that pain had been made worse by not knowing precisely how she died. Many years ago, their parents went to their graves without any resolution of the mystery loss of their daughter.’

It was not made clear how exactly this added to the sentence, but it is inferenced that due to the serious impact the offender’s actions had upon the family of the deceased, his actions were deemed to be more serious than an act that had a lesser impact on the family.

Final Sentence

The offender was convicted of murder with a non-parole period of fifteen years and a parole period of 5 years, following the fifteen. This means that for fifteen years following this sentence the offender is ineligible to apply for parole. After that he is eligible to be released.

You can see that he has followed the guidance of R v Fleming and the general structure of sentences in which the non-parole period must be three quarters of the head sentence. 

Lulu Hensman

HIGH COURT UNDER THE MICROSCOPE; R V BUCCA 2015 "The danger of identity assumptions"

HIGH COURT UNDER THE MICROSCOPE; R V BUCCA 2015 – AWAITING DECISION. 

The danger of identity assumptions 

The case today is a case awaiting a decision. So I thought it would be interesting examine the submissions of the appellant. Submissions are papers written by defending council that outline the issues at hand. They are interesting to read – particularly for young law students because they show the application of law to legal matters. 

 Today’s case is about the use of evidence and its implications in a court of justice. When we see evidence, we like to assume it favors one side more than the other. However, in this case, you will see the impact of circumstantial evidence. Circumstantial evidence is a two-edged sword. From one angle it will support an argument and from another, it can defeat it. Phones are strong circumstantial evidence. The courts will often refuse to take the view that the accused did not have their phone on them. They can be used to track locations, motive, messages and previous history.   

CASE FACTS 

In the supreme court of South Australia Wesley Gange was convicted of shooting an Adrian McDonald. McDonald was killed in Parafield, South Australia. The prosecution argued that Gange shot McDonald. They claimed he had hidden in the boot of a car not far from where McDonald stood. McDonald and Gange were once in a relationship.

 The relationship had broken down and caused issues between them. Both of them were involved in drugs, firearms, and violent behavior. Gange had previously sold drugs to McDonald. 

His assistant Tristan Castle was sitting in the driver’s seat. Telecommunication records were used to show the movements of Gange and Castle’s phones. Before this event, Gange had sent texts to McDonald which were derogatory and contained threats.

 There was the use of an alibi for Gange. Gange’s girlfriend ‘M’ remembered seeing him at home on that day. However, disputes arose about the veracity of the evidence. She suffered from psychosis, false beliefs, auditory hallucinations, detachment from reality, paranoia and impaired reasoning. It was appealed to the Court of Criminal Appeal. The appeal was on the basis that the judge had failed to direct the jury properly about the evidence of Gange’s involvement. 

The evidence was highly circumstantial. There is was brought to light that Gange and M used multiple phones interchangeably. It is hard to discern who made what texts and who had which phone. It became more impractical when both Gange and M admitted that because of drug use they often didn’t remember where they were or what they’d done. When the judge failed to show the holes properly in the evidence, the jury gave the circumstantial evidence too much weight. The judge should have given it little weight. The failure to do so made the conviction unjust and inevitable. 

 SUMMARY 

The court believed beyond reasonable doubt that the appellant shot the deceased. They based this belief on telephone records, motive evidence, proof of planning and a confrontation via text. The text messages recorded on the phone of the accomplice, Castle. There were documents placing Gange in a different location at the time of the shooting. 

There were also tracked movements through his phone that placed him at the crime scene. Expert evidence pointed out that phones were not a confirmation of identity. It could never be completely confirmed who was on the other end of the phone. However, the courts overlooked this and claimed the evidence was an important¬part of proof. They were allowed to be equally considered by the jury. 

 APPEAL TO HIGH COURT 

The case went to the high court for two reasons

 - Court of criminal appeal erred in holding that the learned trial judge correctly admitted evidence of the appellant’s past possession of firearms 

- The court of criminal appeal erred by not finding that the learned trial judge misdirected the jury about the weight given to each piece of evidence. 

You have to have specific legal reasons for going to the High Court. You can’t just decide that you don’t want to accept the verdict. The Court of Appeal has the right to refuse you ‘leave’ to go to the High Court. 

WHY NOT BELIEVE THE EVIDENCE? 

The evidence appears to be valid. 

However, if you examine the circumstances under which the evidence appears you will realize that it is highly circumstantial. 

 Firstly, the location of Gange’s phone was unimportant. He had left it behind in Castle’s car. They had not met up for a few days. That makes the connection between his placement and the murder further removed. 

Additionally, it was possible that his girlfriend was using the phone. M had purchased and paid for the phone. Their friends recorded that couple was close and mixed communication devices often. They shared friendship groups. 

If M had been using the phone, anything she said could not be taken into account against Gange. Her medical issues, including paranoia, hallucinations, and delusions suggest that anything she said may not be true. 

 Evidence also confirmed that while Gange used this phone, he also had an additional prepaid phone. M sometimes used this prepaid phone. Connecting a particular party to a phone is impossible. The two did not identify themselves before texting. A phone number is only associated with the phone and not its user at the time. Therefore, the courts had to assume an identity for the phone. That identity could never be guaranteed. 

It was shown that others might have been in possession of the tracked phone. Gange could not identify the exact date that he had it return to him. Some evidence suggested that it had been in possession of others during the day of the murder. 

The value of the tracked movements lessened when applied to the social habits of the accused. The shooting occurred during social hours. But because of the use of drugs neither Gange or Castle kept reasonable hours. Thus tracking whose movement was where and which may have been faked was a concern. While Gange admitted that he sometimes didn’t sleep for weeks, the courts had to apply some weight to the fact that the tracked movements reflected a pattern of someone with relatively normal waking hours.

 ISSUES

 There are many more issues connected to this case. In fact, the submissions of the appellant are 22 pages long. However, I wanted to focus on the use of circumstantial evidence in criminal law. 

When used the evidence appears to make a conflicting statement about the right to fair trial. We are all familiar with this right. Therefore, committing someone on a circumstantial case alone appears unfair. 

The Bucca Case has not yet come to trial, but it will be interesting to see the High Court’s remarks upon the extreme reliance on the assumption of identity. 

 New technologies have increased the ability for police to track charged individuals. However, it also leads to confusion and greater misunderstanding. Phone numbers are not identity codes, yet it appears the court has begun to treat them as such. It would be interesting to remove the evidence of Gange’s phone and re-run the trial. My prediction would be that without the critical assumption that a phone indicates the identity of a person, no case could be completed.

 I look forward to hearing your thoughts on this issue. Also for those who don't listen to the podcast. This week I am celebrating two years of running my studyblr and theunderagelawyer.blogspot.com. In celebration I will be releasing a 'printables' package which will be available online in the next episode.

Kodak Black and plea bargaining - is this process really okay?

Dieuson Octave, also known as Kodak Black in his career as a rapper, left the courts happy. Today he was let off a 55-year maximum sentence through a process known as plea bargaining.

A plea deal was made. The deal allowed Koda to agree to do five years of probation and a year of house arrest brought the result.  He had fans calling for his release, showing their support by wearing ‘Free Kodak’ shirts. The overwhelming support of fans was likely an influencing factor for the prosecution’s eagerness to get him out of the courthouse.

The young rapper has gathered followers through the popular video platform Youtube. Well-known rapper ‘Drake’ has even featured his song ‘Skrt’ on his YouTube channel.  However, Kodak's career is plagued with a series of legal issues including assault and drug offenses. While the rapper stereotype matches the conflict with the legal system, the impact on his career would be significant. Some sources suggest this was part of the reason why Kodak was let off.

Lawyers Allan Stephen Zamren and Gary Kollin were both very pleased with the result. Their client will appear on the international music circuit shortly.

So what exactly is a plea bargain?

The term plea bargaining comes from the United States. In Australia, the practice is used as well. It is mostly commonly involved in criminal or civil penalty charges. Usually, the defense will bargain with promises of good behavior and house arrest in exchange for the prosecution recommending a non-custodial sentence.

A plea deal is where your legal team makes an agreement with the prosecutor to accept a lesser charge. That will most likely mean that you will have to enter a plea of guilty. You will plead guilty to a lesser charge.

In Barbaro v The Queen the issue was examined carefully. There the facts are unique. Accused Pasquale Barbaro and Saverio Zirilli were charged for involvement with drugs. The defense and prosecution had negotiated away from court benches. They’d reached an agreement on a sentencing deal.

The judge refused to accept the prosecution’s request for a non-custodial sentence. The judge then lay down his own sentence, upsetting the usual practice.

The case was taken on appeal to the high court. There the prosecution was on a matter of law. The high court had to consider where a plea bargain can be used to prevent the judge from exercising his discretion. It in that the judge as the superior legal mind is capable and should is not his discretion over the case. Usually, this isn’t an issue, but when the defense has bargained away a rightly deserved custodial sentence – can the judge do anything?

It was not a material error for the judge to refuse to accept the prosecution’s submission. The judge was allowed not to take into account any sentencing ranges from the prosecution or defense. The 2014 case was significant as it overruled the previous right for the prosecution to set the bounds of the sentencing range; R v MacNeil-Brown.

Kodak Black is not an isolated case of individuals freed from crimes by plea deals. In fact, he is probably one of the few cases where plea bargaining is just a simpler litigation process. Some litigants who benefit from plea bargaining faced serious crimes
.
Then plea bargaining becomes a threat to the safety of the community as a whole.

Carl Williams was a famous underworld figure. He of with three counts of murder and one count of conspiracy to commit murder. These serious crimes are usually reserved for the most heinous of cases. We’d all like to think they’re treated with the respect they deserve. However, plea bargaining minimizes the severity of the crime. In some cases, it can feel like there was no retribution at all.
Williams’ sentence was thrown away when the Victorian Office of Public Prosecutions struck a deal with Williams’ defense team. Barbaro v The Queen was a 2014 and Williams was trialled in 2007. Then the judge felt he had to follow R v MacNeil-Brown. That meant he accepted the prosecution's submissions and Carl Williams walked away.

So what’s the issue?

Some may find themselves supporting plea bargaining. On face value, it’s a great way of minimizing expensive court costs and negotiating your way out of a devastating custodial sentence. However, the private negotiation process can either force a guilty plea on an innocent accused or realign the sentence to something less serious than what it is.

Plea bargaining is somewhat of a double edged sword. It can save or ruin lives and the foundations of society at the same time.

It is also one of the most secretive processes of the criminal law system.
It is secretive because the negotiation takes place without any official recordings. There is no legislation that can referee this bargaining process and there’s no objective review tribunal. It harbors a little bit too close to the saying ‘you get the justice you pay for.’
If you can afford to hire a good negotiator, you could avoid a drug trafficking charge with a mere use of drugs fine and rehabilitation condition.

To pinpoint what you should be concerned about – realize that this plea bargaining process is entirely anti-democratic an d undermines the foundations of the Australian constitution. There is no jury watching the process. There is no law to ensure justice. Instead, there is just two rogue lawyers and an accused in a room.

It sounds a lot like the plot line of suits, and you would be right to think so.
Some people suggest that this entire process undermines the right against self-incrimination and the right to a retrial. After all, if you accept the wrong plea bargain, there're no files there for you to appeal against.

It’s a lot like an illusory promise. For those who are not familiar with the term, this refers to a contractual promise that has no legal force behind it. It lacks payment or consideration forcing the courts to ignore it.

A plea bargain carries no weight in an appeal court. That being said American courts have treated plea bargains like contracts. That, however, does require some documentation of the bargaining process. Many Australian lawyers prefer to plea bargain through a series of subtle changes and applications to the court. This slower, costlier process has no action in contracts and can take much longer.
Overall, plea bargaining is a well-established process of the courts. However, it can legally pervert the course of justice. Judges are seldom as brave as seen in Barbaro v The Queen. Requiring that plea bargaining becomes an above the table, recorded litigation process can help to ensure justice on both sides of the bench.

How to speed read like an expert

Hello everyone and welcome to another blog post on the underage lawyer.

 One of the topics that have been coming up frequently in my conversations with others is speed reading. It’s a skill that you probably only think about when you have three days to complete an essay, and you haven’t started researching yet. However, speed reading is an important skill that can assist you in everyday life. It shouldn’t be disregarded as useless skills. 

Those who want to pursue a career in law need to know that they will spend every day of their life reading. 


Client’s files can be anything from one to forty volumes long – and it’s your job to read and study them all. Reading is also the best way to expand your vocabulary and improve your thinking capabilities.

 Think of reading as upgrading technology. The more you do it, the better it gets. The less you do it, you eventually fall behind. Here are a few ways to improve your reading speed:

 1. Read a lot

 This is a basic essential. The more you read the faster you get. The less the read the slower you will become. Some scientific studies suggest that reading things on the screen of a computer is actually different to reading on paper. I’m not entirely convinced, but just to be certain you’re actually reaping the benefits of reading make sure you read both on and off screen. To improve your reading, think of it a little like sprinting. You have to run as fast as you can regardless of whether you can maintain the speed or not. When you are first beginning training yourself to speed read, don’t worry so much about comprehension. As your retrain your eyes to move along the page at a faster rate, you’ll begin to take more in.

 2. Pick the operative words 

One fatal mistake when it comes to non-recreational reading is that we read all of it. It’s very rare that all of the text will be relevant to you. To improve your reading pace identify what it is you’re looking for. Then pick three or four words that will describe that thing. From there you can run your eyes over the text. Every time you see a relevant word stop and read a few sentences surrounding the word. If it applies, congratulations. If it doesn’t apply, then keep skimming through. This way you’ll be able to ascertain just how relevant the material is. If you don’t see any words that seem relevant then either rethink your operative words or move on to the next paper. 

3. Read the first and last line 

There’s a lot to be said for introductions and conclusions. Remember learning about topic sentences in high school? Well, this is why you use them. Academic literature uses these to highlight what they’re going to say. When you’re in a rush, don’t bother with the rest of the paragraph. Just focus on the first lines of every article. By the time you reach the end, you’ll have a general idea of what’s being said. Additionally, if you read the last line of every paragraph, you’ll have a concluding statement and a linking statement. The linking statement usually explains how the next section will connect to the first. This is important because it will show you the pace that the essay evolves at and any assumptions that you need to be aware of. 

 4. Don’t sound the words aloud in your head 

When reading a lot of readers like to ‘speak’ the words in their head. This is a waste of time. Your brain is capable of comprehending the phrase without sounding it out. The more you read, the more you will be able to do this. But to begin with, help yourself to lose the habit by reciting random words in your head as you read. I began doing this by saying ‘aeiou’ over and over again while I was reading. To do this at first, it is best, to start with relatively simple reads. Try reading opinion articles or Buzzfeed pieces. They’re much easier to comprehend than academic literature and will build your confidence. You may be surprised at how much you can understand without having to focus too much on sounding out the words. 

 5. Dot point as you go 

A critical issue with speed reading is that people are concerned they can’t read quickly and understand the text. A simple way to of getting around this is to write one word describing the paragraph. Skim read the article as fast as you can and then summarize it immediately. The use of summaries in one or two words helps to lessen the fear of not understanding. The human brain is far less reliant on the sound of the words than people think. When reading the shape of the letters is just as important.

 6. When you don’t understand keep reading 

This may sound a little counter-intuitive. However, the biggest trap for slow readers is that they are hesitant to move on before they understand something. That will slow you down. Some points are poorly explained, and it will take multiple readings to understand. You need to know that if a point is badly explained it’s likely not essential to the argument and is irrelevant to your reading. It may also be that you’ll come to understand it when you read something later in the document. Your best bet when trying to rush your way through a massive pile of information is just to keep reading. Stopping and rereading things will break the rhythm of the reading. That may also cause you to read slower.

The fault in our democracies

Safe to say coffee won't be going
near my laptop again!

Hello everyone, sorry for the long break in posting. It was supposed to be a short break – but following some computer problems, it quickly turned into a longer one. – Long story short I managed to spill coffee on my laptop…and didn’t that just ruin my love of coffee? 

There have been a lot of interesting things going on in my absence including but not limited to, the rise of Donald Trump, the Medicare scandal and most famously the Brexit decision. There are a lot of legal issues associated with them, but the most common thread between all of them is misinformation causing a false overall decision.

It is the general rule that you cannot intentionally misinform the public without some consequence for your mistake. We witness this most commonly through media shows like today tonight or consumer affairs, which publicly shame businesses for misinforming the public producing a false or unfair result. A couple of years ago a juice company Ribena was rebuked after its ‘black current health drink’, promoted to children and their families, was shown to be incredibly unhealthy. The drink deliberately misled parents to believe that it was safe to consume regularly when in actuality it could have harmful effects on health if regularly consumed without a healthy diet and regular exercise.

I am sure there are much more examples of penalties for companies that misinform the public. 

The law may seem boring, but it is important
for maintaining an equitable society

However, despite penalties existing for businesses, a cone of immunity surrounds the political arena and its delegates. It is fair to say that the most watched democracies; namely the USA and the UK have been the largest culprits of these political scandals. Obviously, there must be some level of inducement made by political parties to promote their message. However, surely it must stop short of behavior that would be unacceptable anywhere else, like lying or harassment. I would like to pick this topic up later as I feel there are many more sides to this argument.

This situation does bring up the question of freedom of speech. When electing politicians, you would think that you would want to give them the freedom to speak openly. However, this privilege is

clearly being abused, especially in America where the constraints on freedom of speech are so minimal that you could just about defame anyone as long as you have the money to defend yourself. Which is probably why Donald Trump has not been sued for making inappropriate and defamatory public statements such as;

‘Barack Obama’s birth certificate is a fraud.'

‘Ariana Huffington is unattractive, both inside and out.'

‘It does not matter what the media write as long as you have got a young and beautiful, piece of ass.'

‘If I were running ‘The View’ I’d fire Rosie O’Donnell. I mean, I’d look at her right in that fat, ugly face of hers, I’d say ‘Rosie, you’re fired.’”

‘The only card [Hilary Cinton] has is the woman’s card. She’s got nothing else to offer and, frankly, if Hillary Clinton were a man, I don’t think she’d get 5 percent of the vote.’

In all of these quotes, Trump either directly defames a famous person or an entire industry. If you do some research, you will find that Trump has managed to escape liability for all of these statements almost entirely.

A lot of what Trump says makes me think of
'Let them eat cake' - Marie Antoinette

I say almost because the one point at which Trump has suffered and I am sure you will all agree is his personal brand. A personal brand is a term usually referring to a person’s professional reputation and transferring it into a market value. Every person has a personal brand, and you may use it when applying for a job, writing an article or networking at a professional event. Merely mentioning ‘Trump’ can end an entire conversation. His reputation is so socially damaged that some would suggest that it was irreparable.

Terrifyingly, America has continued to support this political figure, despite multiple outrageous and inappropriate statements. Some propose that he is only popular because it is a way of people protesting against the weak leadership shown by other candidates indicating the public’s disillusionment with the overall political system. The landside backing of Barack Obama supports this theory– who, although had a high level of integrity, showed strong leadership and distinction in his policies. This can sway public opinion significantly.

It concerns me that this bears a striking similarity to the Brexit result. I will not give my opinion on the final result because I would prefer to perform an analysis of the actual events leading up to it.  The Brexit was fraught with both misinformation and public confusion. The high level of disillusion in Britain with the decisions of the European Union in the past and the lack of democratic influence that they had over Brussels led to uncertainty about the actual consequences of the decision.

Some individuals were able to inform themselves about the role of the European Union and investigated in depth the effects that the British leaving the European Union would have. Yet the majority of people relied upon the media and its coverage of politicians to determine who they would vote for. Similar as to what occurred in Australia during the Medicare Scandal of 2016, one issue led the decision because of media sensationalism.

Immigration.

Immigration is a contentious problem that has advantages and disadvantages on both sides. It would be unreasonable to suggest that migration does not come with difficulties. Every culture from Africa to Britain has its quirks and melding one culture with another will undoubtedly cause conflict. Therefore, finding cultures that are similar are imperative for positive migration with minimal conflict.

Some may suggest that the geographical location of European countries infers a cultural similarity. However, such a suggestion is outdated and ridiculous. Russians and Britains are not similar despite sharing a continent. Same as Norway and Germany are not similar despite sharing a border. Australians and Britains have a culture that is relatively similar despite a geographical distance. The same is true for Canadians and Australians.

History and culture are part of who we are
and should not be ignored when seeking a
new homeland

The history shared by the countries has created a similar culture that allows for the blending of the three of them to be as simple as possible. Therefore, thought needs to be given to the culture and habits of the country to which migrants are traveling. It is terrifying enough to move countries, and I am sure that anyone who has visited other countries knows the relief of coming to a country which bears similarity to its own. It is not racist or insensitive to suggest that the common characteristics of cultures should be matched to another country for refugee migration but a practical consideration for better immigration.

However, it does leave open the issue of diversity. Diversity encourages the development of thought and broader value appreciation. In fact, Australia has benefited from the integration of cultures like the Italian, Greek and Vietnamese. This migration did not come without issues and occurred in numbers that were carefully monitored by the Australian government.

It does not take much research to discover the racist rebuke of Australia towards the influx of migrants. It was not long ago that Australia sported a ‘white Australia’ policy, which operated to prevent the flow of undesired migrants into the country.

While the application of the policy was culturally insensitive and disappointing in reality, the theory is sound. The original idea behind it was that Australia would apply a selective process to determine the characteristics of entrants into the country that would suit the ideology of Australian culture. This process preserves the idiosyncrasies that make up a diverse culture while ensuring that there was a thread of commonality that maintained the national image of Australia.

It was the same concern that drove the disillusionment of the British people. In a belief that their national image was under threat with the influx of unknown and potentially radically different migrants a reactive protest resulted in Britain leaving the European Union.

The concern, however, is that the people of Britain did not understand the true nature or impact of their vote. A false understanding was promoted to the public at mass by political parties such as the Independence Party – with political member Boris Johnson.

The ex-Mayor of London was so confident in his false promotions that he drove around on a bright red bus proclaiming that leaving the European Union would give the NHS 350 Million pounds extra a week. Unsurprisingly, this was later denied to be true by Nigel Farage. Nigel Farage is a British Political, who is the leader of the Independence Party.

One would assume that the head of the independence party would have prevented the overzealous Boris Johnson from spreading misinformation. However, it appears that in this battle, it was more about getting votes for their party than actually informing the public.

This cruel tactic may sound familiar to Australians who recently found themselves at the mercy of the Labor party. Bill Shorten, the leader of the Labor Party, pitched a claim to the public that the Liberal Party had plans to privatize Medicare.

Researching is a serious business ;)

As a country that has prided itself on the provision of healthcare to all in need, it is understandable why the public reacted so violently to the claim. Similar to the Brexit this was not the only issue at hand, as the economic future of Australia was also important. Through media tactics, the Medicare scare quickly took hold in the minds of most Australians preventing other relevant discussions from taking place.

What is evident in all three situations is that there is fast becoming a culture of sensationalism in politics. Democracies will always run the risk of erring too closely to an ‘American Idol’ type contest, where popularity determines the winner and not political sense. It is evident that currently, the media is taking a front seat in driving politics away from an objective debate to a reality television style throw down.

It would be inappropriate to ban the media from participating in election campaigns. Freedom of speech is perpetuated by the press and should never be lost. It was a right that democracies around the globe fought for by the people. They did not fight for the right to spread misinformation and I am shocked to see this occurring around the globe.

I would love to hear your ideas about how we can prevent media sensationalism in the future so please if you enjoyed or disagree with me - please let me know! You can get in contact with me through email, twitter, instagram or tumblr.

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. 

Australian Universities - the gap in Australia's potential

Many of you who know me will know that I am currently traveling around lots of universities picking out which one I will attend for my proper law degree.

During my travels I've realised one key thing; academics as Australia sees it is entirely flawed. When I

Foleys bookstore - haven for academics!

applied for Australian Universities they asked for one thing.

My grades.

My entire academic year was spent with the dreadful realisation that my entire legal future depend upon a single number, one decimal too low and I'd be struck out of the contest.

Generally I welcome competition, finding it to be a rousing challenge that encourages all players to strive to present their best. Yet throughout the year I observed myself and my peers facing what was an increasingly obvious set of biases. Some were in our favour and some were against.

Australia operates several complex systems of education, but all have some similarities. If you don't understand or recognise what I describe, don't worry- chances are it's different in your state, or no one ever told you.

As a student studying third year law and high school I spent many hours traveling between academic institutions. I had a passion for law and it grew throughout the year as it fostered by my university. They were a wonderful beacon of support and I owe them many thanks and gratitude; my issue is not with the universities, the institutions or the people within them but the poorly way in which the system is applied.

So what am I proposing?

Those in America or Europe have the fantastic opportunity to provide a letter.

Generally known as a personal statement these little excerpts usually sit at around 400-500 words and provide some insight into the applicant's reason for applying.

For law, which is fast becoming Australia's new throw-away degree, this would be an invaluable method of assessment. Not only can you consider students based on aptitude, but also on drive and passion. Many of my peers are choosing to study law – but about 1% actually intend to join the legal force.

Why then are they studying law?

Many claim that understanding the law gives them fantastic grounding in other careers. Never mind that they'd be better served in management and economics or politics course which gives them a working understanding of law and it's implications upon society.

Personally, I think we have so many students changing degrees and feeling unsatisfied because universities are simply drawing students out of a hat and plonking them down where ever they see fit.

No longer do we see students considering seriously what they apply to study. As the options are so flexible that if you really truly wanted you could migrate all they way from english literature to specialised medicine.

Is this fantastic?

No.

There are arguments for increased flexibility- but I'd have to reply to all of those – I've never seen so many Australians with a lack of passion. The question 'what do you want to be?' is answered with laughs and 'I'm only young, I don't want to be tied down.'

This mentality is devastating to our young people. Not only does it create a culture where knowing where you want to go in life at a young age is strange, almost comedic, but it prevents exploration. From reception to year 11 students stroll through, introduced to various careers in short brief meetings. Some students may do work experience – but no one takes that seriously.

And in the end, you could have worked as hard as you could, doing work experience, speeches, seminars, reading, and none of it would matter.

The universities will never see that work, nor will they be interested in it. The future will literally rest upon how you compare to the rest of your country. A reasonable thing when you consider you do want the best and brightest in attendance...but do they always show up in high school?

And why would the best students put effort in at high school? Consistent reminders that their futures are far-far away and continuous reminders that choosing a career now will 'only tie them down' ensure no student bothers to put effort in. High school seems like an endless desert, in which every work sheet is just a time filler until the final year.

So why do I bother to write about this now?

In foreign high schools the students I've met have been encouraged from middle school to find a topic of passion. Students have started up news letters, podcasts and even contact great researchers in a bid to be their assistants. Lo and behold, they have been successful. They are not tied down – and while their system is far from perfect it does provide students with empowerment.

Universities also receive the personal statement, this statement shows off all the work they have done in their field of passion.

Then the system truly becomes a competition as students throw not only their academic scores into the ring but experiences, revelations and future aspirations. Universities suddenly have the blindfold removed and they can piece together a cohort that will not only help each other to succeed but will bring prestige and pride to a university.

I hope in the future, universities around Australia will begin to implement the use of personal statements.

Currently, as a recent graduate I feel that Australian schools are failing to foster the maturity and potential of other students. Therefore forward thinking and well developed universities must implement the personal statements into their application processes in order to find the students that are not only academically brilliant but possess a passion or aspiration that the university will be proud to help them achieve.