What does it mean to persevere?

There's something that I don't think I've covered nearly enough in my blog. It's something that all young lawyers need to know - what perseverance means.

Traditionally we think that perseverance means to continue working where we feel that we have a passion and a goal. Many people believe that perseverance involves doggedly working towards an aspect of our lives that we feel that we should succeed in. They believe that it's a habit of successful people and unsuccessful people lack perseverance.

sometimes the road ahead seems daunting

But is that all perseverance is?

We read about perseverance in self-help books and write that we 'persevere' in linkedin profiles. But do we truly understand the weight of the word?

In my belief the above isn't what perseverance means, it's a part of it- but perseverance really means building an internal strength. When I think of perseverance; I think of the word as it refers to a passion and a belief that succeeds all emotional and physical hurt, setbacks and other distractions in order to realize a continuing journey of maturity. It's not a mere skill or buzzword. It's a hard and painful lesson that we develop as we mature in our lives and 

It is often a painful experience because perseverance can only exist where there have been failures. You cannot persevere where you have only ever succeeded because that is merely success. To know how to continue working even during the most harrowing of situations is a level of maturity and true perseverance that all lawyers must possess.

Young lawyers especially must work to develop this as the law is a field that demands someone of strong spirit and rationale. While many jokes (particularly in Australia) are shared about lawyers and their wages we must not forget the emotional devastation that is a reality for many judges and lawyers.

It particularly struck me when meeting a chief magistrate in Australia, that the law requires great emotional strength from each legal representative. The magistrate spoke solemnly of the people he had sent to jail and those he had given a second chance. He was teary as he spoke and I could have joined him as I realized the gravity of the sentences given for many were life sentences in disguise remorsefully given.

One story explained that a homeless middle-aged man, living in the streets and raised in an abusive home, had used a bottle to knock out a service station attendee and stole $25. The small amount of money taken from the till was intended for food. Unfortunately the man was shaking so badly he couldn't walk or escape the scene of the crime. The police arrived quickly and the man was taken into custody.

His motivation for doing the crime?

'I hadn't eaten in three days...I was either going to steal something or kill myself.' The statement from any other person would seem over exaggerated, perhaps even falsified. But it was clear this was the reality for that man. His home life was described as shattering and it was clear his chances of getting a job after dropping out in year seven were few. But still the man was sent to prison for two years.

The sentence may appear minimal but prison can have a devastating effect on our vulnerable groups. Not only does it brutalize many people but it leads to difficulty in finding a job and building relationships both vital components of building a stable home life

So how can you continue to aim and strive for a just and equitable world when it is clear our system is fraught with issues?

Perseverance has taught us to take little steps, to continuously balance out our achievements with our

sometimes a hot drink is just enough to get us through

failures. Most importantly perseverance has taught us to fight through the sea of our failure to reach for our success.

For a long time I struggled with the desire to become a lawyer. Why would I want to become a part of a world where a man with no opportunity will be treated harsher than a man with many? How could I fight against a system that is so set against those who are helpless that even magistrates and judges feel powerless to fight against it? Surely as a mere under aged and beginning lawyer my contribution – any contribution – would be like offering a crumb to a group of starving elephants.

I'm no philosopher, but I have decided that I have reached a conclusion. In-eloquently put; there are many things in the world that are unbalanced. Some of these things are heartbreaking, the way that we view criminals and the disadvantaged. The way that we segregate based on religion, wealth or race. Yet, it is only when, among all of the disappointment, breakdowns and failures, that we continue to strive and persevere to effect some kind of change that we actually create change.

There are many legal greats of our time and of times past. All of them started out as people, people who felt that there was something unbalanced in this world. They all would have felt the daunting and demoralizing weight of institutions. Yet they still stood and worked. They persevered.

I'd encourage all my readers, potential lawyers or not, to continue persevering. It may have broken every belief I had in the law to read the sentences given through Australian courts but it has also helped me to rebuild them. Rebuild them with a foundation in reality and a tenacious belief that continuous perseverance and hard work will, however small, effect change.

Love,

The Underage Lawyer.

Is the Australian compulsory-vote discriminative against protestants?

You know I love coffee shops right?

They’re great, especially for studying. I have written about why they are one of the biggest study aids in one of my previous posts ‘is this the study tool you’ve been looking for?’

They’re filled with great studying rewards and focus-encouraging atmospheres….except when you overhear a conversation that you’re desperate to join in on. Recently I was in a similar situation when I noticed a man loudly proclaiming that he didn’t have to vote under section 116 of the Australian Constitution because he was a Protestant.

A Protestant is a denomination of the Western Christian Churches that follow the principles of the Reformation. They are a very traditional Christian religion that encourages its followers to adhere to some rules of life as founded within The Holy Bible. – However, please know that voting for a minister of governance in your country of residence is not against the tenants of The Holy Bible.

For those who aren’t from Australia, voting is compulsory for all registered residents over the age of eighteen. Not to vote is a criminal offence in Australia which can result in a $20 fine or prosecution in court which will increase the fine up to $170 plus court costs.

Additionally Australia is a country that bases itself on democracy, failure to vote means that you are not participating in a critical element of our country. But, if something is against constitutional law it is held to be supreme because the Australian Constitution is the creative document of our country (even though it’s an act of British Parliament.) That’s why I thought it would be a great idea to examine how and why this man thought he didn’t have to vote under section 116.

-          A brief history of the Australian Constitution 

In 1901, the Australian Constitution was given Royal Assent. Royal Assent is the title of the process that gives laws of a constitutional monarchy legal effect. Because Australia did not exist before the Constitution was enacted the constitution had to be submitted to the British Parliament for approval.

The desire to federate was led by two men, Samuel Griffith and Henry Parkes. Griffith and Parkes were the forerunners of Federation and participated in all of the conventions around Australia. The two most important meetings that achieved 

Federation were in Melbourne and Sydney.  First, in 1890 at the Melbourne conference where they made the unanimous decision to federate. Then at Sydney in 1891 where they chose to follow the American system of government and drafted the constitution. Notable figures at this convention included Alfred Deakin, the second Prime Minister of Australia and Inglis  Clark a barrister and judge who was the principal author of the Australian Constitution.

-          What is section 116 about?

Section 116 (the clause of the constitution that the guy was talking about) refers to the exclusion of power of the Commonwealth to make laws about any religion or religious activity. It has a very limited jurisdiction as a consequence of two landmark cases, Kruger v Commonwealth and Adelaide Co of Jehovah’s Witnesses Inc v Commonwealth.

Its exact words are:

COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT 116Commonwealth not to legislate in respect of religion                   The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

-          What was the loophole in section 116?

The guy was claiming that there was a ginormous gap in this article that allows him to escape voting. His claim was that forcing him to vote under section 116 was prohibiting the exercise of his religion. Before you all jump on board and claim to be protestant to get out of voting, I suggest that you all realise this is a very, very risky idea. It is highly unlikely that this section has such jurisdiction over voting.

First you would have to prove how is voting prohibiting the exercise of his religion.

According to him voting made him part of a political party and hence was against the beliefs of his religion. A little confusing for sure, but basically he was saying that following a political party was like worshipping an idol. This is against The Holy Bible.

-          How 116 has limited jurisdiction

This section of the Australian Constitution is probably most infamous for its role in the stolen generation. In Kruger v Commonwealth, the question was put before the court whether there could be laws made to take Aboriginal children from their families and put them with white households. They presented that the intent of section 116 was to allow the exercise of freedom of religion. Basically, they argued that the Aboriginal religion (the dreamtime) was being discriminated against by the laws of the Commonwealth.

Logically taking the children from a particular religious group and forcing them to be raised in different homes would appear to be genocide. However, the judges of the case determined (in summary) that the act was merely applied to the making of the law and not the application or administration of it. This horror verdict has managed to limit the application of this section. It was limited so severely that the man loudly proclaiming his right not to vote on account of his religion is probably going to be staring down a nasty fine in the not so distant future.

Adelaide Co of Jehovah’s Witnesses Inc v Commonwealth further limited the authority of the clause. The lesser known case was about whether the Commonwealth could impose laws that were directly prejudiced against a single group. This had a similar decision to Krygger v Williams and both cases determined that a prejudiced law was not a contravention of section 116 if made for the purpose of the efficient defence of the commonwealth. Clearly, this case does not apply to the man in the coffee shop for Australia has never prosecuted Protestants directly under the law.

I’m not quite sure where the non-compulsory voting for Protestants arose from, but it was a good exercise in analysis of Constitutional law. I sure hope that anyone reading doesn’t try to get out of voting under this section of the Australian Constitution. It’s definitely not a loophole.

The Underage Lawyer

Has the Royal Commission been compromised? One man's personal decision creates political chaos.

Dyson Heydon has captured the fancy of Australians.

There are allegations against Justice Heydon claiming that his impartiality is compromised because he agreed to give a speech at a liberal dinner party. Despite these accusations, Heydon is refusing to stand down from his position on the Royal Commission. He is determined to remain on the commission as its head.

Heydon claims that he was not aware of the extent of the political connection that the Sir Barfield Barwick address had. It should be noted, that he has subsequently withdrawn his acceptance as he has not yet given the speech.

The belief that the Sir Barwick event was not connected to the liberal party is not unreasonable. Barwick was a QC and Chief Justice of Australia for 17 years making him the longest standing chief justice in history. Therefore, Justice Heydon as an esteemed retired judge of the High Court was a reasonable choice to appear at the address.

However, Barwick was a member of the House of Representatives and a part of the Liberal party. It is not unreasonable to suggest that a judge of Heydon’s caliber should have realized the possible compromise to his impartiality. Especially when he is involved in a delicate political matter as an acting head of a royal commission. It seems only reasonable that he should exercise great caution when interacting with any part of the political arena.

On the other hand how accountable can a speech make an individual? The act of speaking on a topic at a memorial dinner to commemorate the longest running chief justice in history has now constituted extreme bias that can compromise an entire Royal Commission. The calls for Heydon to withdraw the claim that this single event alone has completely jeopardized the impartiality of the entire commission. My concern is that speech at a respectful event, acknowledging the successes of a great legal mind, is not a pro-liberal placard. Somehow, the head of this Royal Commission who has made a life out of separating his personal life from his working life is being made out to have lost all credibility. The credibility is lost in the eyes of the media and political affiliates because in his own time he merely made an agreement to give a speech at a commemorative dinner.

This begs the question, are we interfering too much in peoples’ private lives?

In today's’ 24/7 society have we lost the ability to remove work related responsibilities and personas from a personal life?

We may argue that giving a speech as a retired justice of the high court has a sufficient connection with his work to constitute it as not his personal life but duties connected to work. However, I would reply that a speech, at whatever venue, does not indirectly or directly express support of those behind the veil of the event. If the primary intention of the event is to provide support, such as at a rally, then the speech itself would also exhibit that primary purpose. An even such as the one agreed to by Justice Heydon was an event that proposed to have the main purpose of recognizing the great legal career of Sir Barwick. It has been treated by the media as a liberal love-fest and not a mere commemorative dinner party.

It is hard to reach an objective conclusion given the nature of the media sensationalism surrounding this issue. I would hazard the suggestion, however, that the intentions of Heydon were as he claims, given that there were mixed intentions of the event that were not immediately apparent. Additionally the finding of evidence by the Royal Commission are not the sole discoveries of Heydon but a collective effort. Hence, the Commission cannot be sabotaged by his presence at dinner.

Justice Heydon, agreeing last year to give a speech on August 29^th has no significant influence on the findings or any implications of the evidence. Assuming that our legal system is not corrupt. A single person offering an oration, while he may hold great authority in the provision and presentation of the conclusions of a Royal Commission can still not suppress findings grounded in sound evidence.

As I have mentioned, I am hesitant to give any final form of an opinion. The media has been infamous for neglecting information in vital cases for years. I will instead return to my earlier comments on the value and separation of personal and work life. I am of the opinion that there are parts of an individual’s personal life that should affect the manner in which a person is regarded during their work life.

However, these actions are easily restricted to crimes of a significant nature such as sexual offenses, fraud or grievous bodily harm. A speech given to a group of officials commemorating the honorary Barwick as a retired member of the judiciary appears to be of a more domestic and personal nature than criminal. While the decision to give the speech is controversial, it is still the choice of Heydon to do so. I was unable to find whether he was paid for his time but assuming not there would be no personal benefit to Heydon.

Hence, it appears that while the judge may not have exercised the caution appropriate for the head of a Royal Commission, his right to give a speech at a commemorative event should not be removed. The speech while held at an event connected to the Liberal Party was not the primary intention of the event. Moreover, the royal commissioner has not sacrificed the integrity of the evidence found by the commission. This means that little argument can be made against the findings of the commission despite his actions.

The public are holding the judiciary accountable for not pandering to public opinion

Dr Ian Freckleton QC grilled a DPP solicitor today. The aggressive interview was challenging a claim that the police had agreed with his decision not to oppose bail for Mr Monis. Mr Monis was the Gunman, who was involved heavily in the Sydney, Lindt Café siege. His granted bail has fired up a hostile inquest from the Police about whether or not there was a case against Mr Monis that could put him in prison. Currently the main issue featured in the inquest is that Mr Monis has been allowed bail by the inquest. This has caught the eye of the media and in turn incensed the opinion of the public.

The nature of the court system is one that experiences severe delays. The relevance to this case may appear trivial but it is clear that if there is any doubt surrounding the case the court should allow time for the prosecution and defence to gather and build their argument. Under Dietrich every person is allowed legal representation. Additionally that representation must be of reasonable standard. Hence, if Mr Monis is charged by the court when he can later prove that his legal representation was not sufficient it could delay the course of justice for years rather than months. So while the public may be out raged by the supposed release of a criminal, the judiciary are not negligent in their actions. The common person must understand the golden handcuffs of law. While the law is our only objective means of justifying punishment it can also be manipulated to delay retribution for wrongs done to society and its members.

Additionally the court must enforce the principle of innocence until proven guilty beyond a reasonable doubt. This principle applies heavily to the rule of law. For those who are not familiar with the term, the rule of law is a legal doctrine. The doctrine notes that any person regardless of their previous history, their criminal offence or their social status must be treated in the same manner by the law as any reasonable person would be treated.

It sounds a lot like common sense, but an emotionally charged case like the Sydney Lindt café is evidentially when this principle can be discarded easily. Many of you, as I often do, are wondering if gunmen like Mr Monis should be treated in the same manner as we’d treat the reasonable person.

After all, he did begin a terrorist attack on Australian territory, with clear malice of forethought. He took his gun to our citizens without care for their future, past or wellbeing. He did not think of their families or those who would be forever traumatised by his actions.  

However, it is when we consider his actions and the public reaction that we realise we must uphold the rule of law. No democratic country can be proud of itself unless it has a strong reckoning of democratic and fair processes. These processes must remain even at the public’s outcry. For it is not the role of the judiciary to appeal to the public. It is the role of the magistracy to ascertain whether there is sufficient purpose for prosecution and reason for detainment.

It becomes evident therefore that if the court at its impartial discretion has made the decision that there is reason to provide Mr Monis with bail then he must be allowed bail. Unlawful detainment regardless of the public opinion directly opposes the rule of law and overrides the writ of habeas corpus. The writ of habeas corpus protects against illegal confinement. This doctrine is a vital piece in the balancing act between the power of the state and the freedom of the people. This circumstance could easily be flipped on its head, in which public condemnation occurs without reasonable doubt and creates a modern witch hunt.

Often in our society we are quick to judge however limited the facts. I was privy to a conversation recently on Oscar Pistorius. It is a popular opinion in Australia that this man murdered his girlfriend with malice of forethought and is unremorseful for his actions.

I was surprised to find that those I was speaking with took limited note of the sociocultural surroundings and his personal position in society. While I am of course aware of the issues surrounding his story, I can also see plausible reasoning for the accidental death of his girlfriend.

Those who know about South Africa know of the constant risk of home invasion. It is a common story in South Africa even in gated communities. Just last week Australia received news of a massacre inside a very safe gated community. The fact of the matter is that Mr Pistorius is a wealthy white man living with his girlfriend in South Africa. It is possible when he heard the noise that he did assume it was a home invasion. Given his disability he may have been more alert and wary of his capabilities hence his actions may be a reflection of his fear. Moreover, with an automatic gun five bullets, for me, creates reasonable doubt as to whether it was premeditated.

Australia these days – indeed America and Europe as well – seem keen to judge and less so to consider. So we must ask the question should our judges, who are currently impartial juries of fact, adopt the emotionally charged thinking-process of the general populace or should they continue with their pure application of the law when determining guilt and innocence?

It is clear that while the judiciary is intended to be impartial they have great power over the type of individuals that are released into the community. Should it not be that those in the judiciary make such decisions with the mindset of the common person in the community?

In answer I shall refer you back to what I said before, the rule of law is the basis of our democratic society. The moment that we become overrun by emotion our ability to examine situations objectively and provide democratic and reasonable punishment lessens. Hence, while I will never recommend that we restrict our conversations I encourage us all to remain cautious about condemning those in the judiciary.

Indeed, the legislative whom we have elected as an element of direct democracy in Australia, must be held accountable for any decision they make that is not in public favour. Because the legislative and the executive are irrevocably intertwined we rely intensely on the judiciary for our democratic values to be upheld when public opinion cannot be trusted to be fair.

Therefore, while socially it remains acceptable to question the decisions of the legislature we cannot condemn the application of law by the judiciary unless there is a fault of legal application.