PDF - Melbourne University Law Students` Society

Purely Dicta
Issue 2, 2012
E D I TO R S
Felicity Baldwin
Gabriela Aloisio
ASSISTANT EDITORS
Ariane Garside
Bianca Caserta
Thibaud Arbes Dupuy
D E S I G N A N D L AYO U T
Ben Sturrock
CO V E R D E S I G N
Andy Chislett
S P E C I A L T H A N K S G O TO T H E F O L LO W I N G CO N T R I B U TO R S
Pat Easton, Matt Curnow, Mika Tsoi, Benjamin Hine, Jaani Riordan, Marcus
Hannah, Jessica Dawson-Field, MLS Elevator Gossip, Claire Marshall, Ariane
Garside, Andy Chislett, Lachie McKenzie, Wendy Liao and Pat Santamaria
2
T he R egulars
Editors’ Welcome
Gabriela Aloisio and Felicity Baldwin
Obiter Dictum
L ifestyle
04
Hello Yogie
05
Eeny, Meeny, Miny, Moe
L ife B eyond L aw S chool
So Long And Thanks For All
The Free Barbeques
Ariane Garside
Jaani... The Man, The Myth,
The Legend!
Jaani Riordan Interview
06
08
Jessica Dawson-Field
22
Claire Marshall
23
Fifty Shades of Grey: Is the Sex
Contract Legally Enforceable?
24
B usiness
Career Advice From Walter White
Marcus Hannah
26
E ntertain m ent
Non-Law Practice Careers —
Choosing The ACCC
Benjamin Hine
Clerkship Rejection Letter
Matthew Curnow
Kick-Starting Your Career After
Rejection
Benjamin Hine
10
Law School’s Got Talent
Andy Chislett
12
Bernie: A Review
13
A Poem
Mika Tsoi
Pat Santamaria
28
30
31
T he I ssues
HIV
Anonymous
A Dickhead’s Guide II
Pat Easton
Censor Facebook, Ensure Justice
Lachie McKenzie
14
18
19
3
T he R egulars
Editors’
Welcome
Welcome to Issue 2 of Purely Dicta 2012.
If you love what you saw in issue 1 and are hungry for more, then you’ve come to the right place!
This issue is themed ‘Life beyond law school’ and we will be hearing from a few of our very own on their thoughts about life and the
law. Also, for those of you who are keen on taking short cuts, we will be catching up with the legend himself, Jaani, to ask him a few
questions we’ve been dying to know the answer to. We’ll bring you some pointers on take-home exams (Elise Bant knows we need
it); tackle the hard hitting issues surrounding HIV; chat yoga; provide you with a response, sticking it to those god damn clerkship
rejections and much more!
We hope you enjoy reading and encourage you to write in if there is anything in this edition that interests or offends you, or if you
just want to tell us what a great job we did (we only accept positive feedback). We would also like to encourage those who like what
Purely Dicta is about to apply for an Editorial Position in 2013! For more details visit www.mulss.com.
Cheers,
Flick and Gabi
4
ObiterDictum
Latin, deconstructed, in case of need
age quod agis
If something is worth doing, it is worth doing well.
See: the Q&A with Jaani
abyssus abyssum invocat
Deeper thinking leads to deeper understanding.
Not necessarily true, especially in Legal Theory, where
deeper thinking leads to… more thinking.
fidite nemini
Trust yourself and your horse. The Spring Racing
Carnival is nearly upon us!
ignorantia legis non excusat
Ignorance of the law is no excuse. Also known as,
make sure your notes are good before your exam.
non semper erit aestas
It will not always be summer. No shit. No wonder Latin
is a dead language.
pacta sunt servanda
Agreements must be honoured. Well that depends if they’re
valid. See our discussion on the sex contract in Fifty Shades of
Grey.
qui dormit non peccat
He who sleeps does not sin. We prefer, he who sleeps
has somehow managed to get all his work done, or goes to
Monash.
5
L ife B eyond L aw S chool
SoLongAndThanksFor
AllTheFreeBarbeques
Ariane Garside
T
here is a near-inhuman capacity in many law students
for denial on both the micro and macro level. Six
thousand word research essay due in a week? Still time to
marathon the somewhat mediocre fifth season of the West
Wing (save the sixth season and Santos for a time when
stress levels don’t prohibit full enjoyment of the verbose
trials and witty tribulations of idealists on the campaign
trail). Given time, we will ensure that time is stretched to
the fullest procrastination capacity.
But it is the larger scale of denial I’m focused on at the
moment. There is an ongoing - though very lazy and
fairly hackneyed – joke in the law school that we all have
somewhere along the way lost our lives. That ‘normal’
people, whoever they are, are off befriending friends,
drinking drinks, being Hollywood-film-worthy and
generally seizing life by the jugular, while us poor devils
are trapped by our own brilliance in the (literal) ivory tower
that is Melbourne Law School.
Of course there is nothing new under the sun, and that
runs especially true for law students; anything the rest
6
of humanity suffers, we have to suffer it better and with
greater and more painstaking attention to detail. Now,
let’s see how many philosophical buzz-words I can fit into
one sentence: the universal inertia of self-aware and selfpropagating mortality results in a Sisyphean love and
simultaneous loathing of our present, in favour of nostalgia,
and its inverse, the longing for a Utopian (or for those of a
particularly nihilistic bent, Dystopian) future.
What I actually mean is that many of us prefer to excuse
the present by envisioning the future as a wondrous time,
when our current struggles cease and we have, for lack of
a better term, the life we are currently lacking. This could
be anything, from a high-flying corporate job in a top-tier,
to working on the ground handing out UN aid packages
to starving populaces, to partying it up on the yacht of an
exiled Croatian general, building a family with someone
you love, running your own bookshop that stocks only
vintage Game of Thrones novels, or - if the LSGT is anything
to go by - there is a goodly proportion of us who just want
to be Kanye West when we grow up.
Photo: Ben Sturrock
My point is that in our minds we live multiple times, always
reaching for the next one, the big one, the life where we
finally can just live. And law school is seen as one of the
inescapable obstacles to that next life.
To those of us who use this excuse, it’s a false comfort. We
all know, to some degree or another, depending on our skill
with denial, that all of life is just finding ways to pass the
time, and just because we are in law school - which is by
definition a waiting room for the next section of our lives
- that does not make it any less ‘real’ than any other part or
time of life.
For a lot of people, all of everything they do at this
point is directed towards resume building; be it sports,
competitions, the self-interested altruism of volunteering,
extreme sport studying, socializing with other law folk or
becoming obsessed with the apocalypse that is Not Getting
Any Clerkships. And that’s perfectly fine and admirable,
because all that is life-making; it is future oriented. More
than that, it is without fail the kinds of things we will do
anyway throughout our lives, just to pass the time with
some small measure of meaning or pleasure. It doesn’t so
much irritate me as it gets me down when people cheapen
what we do while here the law school by labelling it all as
placeholder material for some greater beyond world. The
law school may not be like the rest of the world, but it is
a part of it, and we don’t get to excuse any kind of fear or
laziness or stupendous stagnation we go through on the
grounds that for now, we live in limbo.
Law school is not limbo, although I wouldn’t put it past the
universe to have sentimentally and somewhat accurately
categorized it as purgatory. In the absence of any physical
proof of this, however, I’d like to leave you with a somewhat
vague and unintentionally atheistic sounding point. It’s
quite small and not at all groundbreaking, but easy to
forget and important to remember:
There is no big secret to life waiting on the other side of the
law school. And that’s brilliant. ♦
7
L ife B eyond L aw S chool
Jaani...TheMan,The
Myth,TheLegend!
Interview with Jaani Riordan
W
e took an afternoon off from law school, visiting
Oxford to drop in on Jaani and ask him a few
questions! For those of you who are too busy slaving away
making your own notes and don’t know him, Jaani is the
hero behind www.jaani.net, saving our lives, one case
summary at a time.
Firstly, on behalf of MLS students, thank you for your notes
website. Did you have any idea students were still using
your notes (and that you are a cult hero at MLS)?
You’re welcome! According to my website stats, my notes
receive about 300,000 page views each year, but I really
can’t believe anyone still uses them! Although I do receive
grateful emails from time to time, I generally just assumed
that the notes would enjoy a slow slide into obscurity.
Some students say that they use your notes to learn off,
rather than the text book or the lectures. What are your
thoughts on this?
I think they are probably not making the best use of their
course fees. The notes were composed — usually in a
mad rush during SWOTVAC — based on my reading and
frequently limited understanding of the materials. They’re
full of holes, errors, and archaisms. They really shouldn’t be
relied upon for any serious purpose. A good textbook — or
the dynamic environment of a lecture — was really a much
better way to learn for me personally.
Did you study a double degree or just law?
I studied law/computer science and graduated from
Melbourne Law School in 2007.
What extra-curricular activities did you participate in at
law school?
The usual stuff — Law Review, debating, orchestra, fencing,
photography, tennis. I did an exchange semester in the
Netherlands and tutored at Ormond College in my final
year. I also ran a small web consulting business to pay the
bills.
8
Did you have any career objectives when you were studying
law?
Not really; I did the clerkship rigmarole like everyone else,
but always assumed I would eventually do something other
than law. I ended up taking a grad position, which I really
enjoyed, but left to co-found a start-up and pursue doctoral
studies abroad.
What prompted you to create the notes website?
Writing good notes takes time, and it seems something of
a waste to burn or bury them after exams. I’ve never made
any money from them — apart from the odd donation of a
tenner here and there — and I simply thought they might
be useful to other students. In most cases, I put them
online before my own exams. I’ve since been contacted by
people ranging from students to self-represented litigants
and law reform commissioners expressing their thanks, so
I’m glad I did.
How did you make time for all of the activities you do?
What kind of skills do you employ to study efficiently?
I think being busy enforces its own kind of efficiency. I had
to travel about 90 minutes each way to uni, so I kept up
with my readings on the tram. I took basic notes during
lectures, highlighted cases and articles as I went, then
reread everything and wrote the final notes (and an issues
checklist of maybe 5–10 pages) during SWOTVAC. All the
extracurricular stuff I did because I loved it. It did mean
prioritising some things over others, though.
Did you have any assistance preparing the notes, or are
they all your own work?
I’m enormously grateful to my lecturers and tutors at
MLS. They undoubtedly contributed to the structure
and taxonomies used in the notes, as well as many of the
critical remarks. Apart from quotes and extracts, I wrote
the notes myself, but the ideas were clearly drawn from
a wide range of primary and secondary sources, lecture
slides, class notes, and so on. In addition to the general
acknowledgments, I would like to get around to footnoting
I recently wrote updated sets on contract and trusts,
for example, which I used as a basis for lecturing
undergraduates at Oxford. They have a correspondingly
Anglocentric focus, but might be useful in filling some
gaps, so I might upload them. Wider updates would be a
considerable undertaking. If anyone wants to volunteer...
What is the password to unlock the PDFs?
I can’t count the number of times I’ve been asked this! The
answer is that I honestly can’t remember. They were left
on an old computer in Melbourne, and I have since moved
to the UK. The PDFs started getting locked after I caught
someone trying to sell the notes as their own — not cool.
There is an urban legend that there is an error in the
Quistclose notes, and in 2010 the entire cohort used your
notes and all made the same error in the Trusts exam,
prompting the teachers to change their marking for that
question. Firstly, have you heard that story? And secondly,
have any lecturers contacted you in regards to requesting
your notes be taken offline? (We don’t know whether that
story is actually true or not).
I’m sure there are many errors, but this ‘legend’ is news
to me. Quistclose, Twinsectra and the like are really quite
straightforward cases (though their interpretation and
classification remain subjects of lively debate) — just
read them, as well as the wealth of exceptionally astute
commentary by Lord Millett, Robert Chambers and others.
My ideas as a third year student were incredibly ill-formed,
now that I look back on them.
Nobody has ever asked me to remove the notes. To the
extent they have any impact at all, I would hope that
they raise, and not lower, the average standard of exam
responses.
them more comprehensively at some stage.
What are your views on collusion?
Is that a trick question? Collusion involves crossing the line
from lively verbal debate of ideas to concerted flouting of
the rules. Don’t do it, kids.
Would you be comfortable revealing to our audience what
the lowest and highest law marks you ever received at MLS
were?
No-one likes a boaster, so — no.
Do you have any plans to update your notes to include
changes and new material from the last 2-3 years? These
missing parts make it a little difficult for students who use
your notes in exams!
Your name is very unusual, is there a story behind it/where
is it from?
It’s Hindi. Hippie parents, so I rebelled and went into law.
What a cliché.
We hear you’re at Oxford now, can you tell us what you’re
up to?
I’ve just finished a doctorate in internet law, which examined
the secondary liability of intermediaries (such as Facebook,
Google, Telstra and YouTube) for third parties’ wrongdoing.
Now I’m going to the London Bar and am the director of a
start-up that streams live concerts over the web.
Do you have any final words for your fans at MLS?
Age quod agis. ♦
I have thought about updating them at various points.
9
L ife B eyond L aw S chool
Non-LawPracticeCareers
—ChoosingTheACCC
Benjamin Hine
I
t is often the case that a certain percentage of those
studying law may not wish to enter practice.
How does your knowledge of substantive law assist you?
While most law students commence study with every
intention of legal practice, the number of students studying
law with the intention of working outside the boundaries of
traditional practice is rising. Volumes of articles and other
publications have previously explored the benefits of a law
degree in professions other than the law. This interview
will not cover such familiar territory, but rather considers
the path from law to related employment in the current
market. Max Daly talks about his experience beginning the
Australian Competition and Consumer Commission (ACCC)
Graduate Program in February 2012.
A law degree is certainly not a prerequisite to a career
with the ACCC. ACCC employees can also be economists,
accountants, engineers and more. However, all of the
powers and responsibilities of the ACCC derive from the
Competition and Consumer Act 2010 (Cth) and other
industry specific legislation. Knowledge of the powers and
operation of legislation is useful, especially about matters
such as enforcement. The ACCC has internal law units to
provide advice to line areas on request. However, analysis
on enforcement, regulatory or policy issues is undertaken
in the relevant work areas by analysts who have a range of
knowledge and expertise, including legal qualifications.
Did you enrol in law with the intention of working in a lawrelated, but non-practice, field?
How did you improve your chances of being selected for a
non-practice job while studying?
No. To be honest, when I commenced study I entered
law because I had high school leaving marks and had
no idea what I wanted to do. Law seemed no worse
than any other option on hand. That being said, I had no
preconception about wanting to practice. I didn’t stop
to think about serious career planning until at least third
year. As I progressed through study, I became less and less
interested in practicing and decided to explore pathways
that would enable me to help others using my legal skills
and experience.
I made an effort to be involved with University life on a
broader scale than study alone. I volunteered on student
representative bodies, tutored for the University and went
on an overseas exchange.
What key skills do you use as a Graduate at the ACCC?
There are the usual skills that are said to arise from legal
study – organisation, time management, oral advocacy and
client services. I find though that I use two skills more than
others in my work. I think that legal training has enhanced
my ability to problem-solve creatively, which is of great
benefit. When considering regulation of markets and policy
development questions, being able to frame complex ideas
in simple terms is extremely useful. The other key skills I use
day to day in my position are researching and writing. Clear
and concise written communication is beneficial in any
professional career.
While many students were applying for clerkships, I decided
to study overseas and travel throughout Europe. Not only
did I want to enjoy the usual exchange experiences, but I
wanted to meaningfully engage in cultural exchange and
learning. The interest in well rounded candidates with
interesting life experiences is not limited to law firms, all
employers want to see initiative and distinguishing features
of their applicants.
When applying for the job, did you invoke different
strategies than those used in the legal market?
There is no secret to any of this, but I did my research
properly. I knew what the goals of the ACCC are, what it
valued, what it achieved and what it wanted to achieve
in the future. I demonstrated how my skills would enable
furtherance of those objectives and how my experience
and values were suited to the organisation.
What are the benefits and drawbacks of your job compared
to legal practice?
10
I am involved with an amazing variety of work in
both subject matter and format. It might range from
analysing submissions on pricing structures for the
National Broadband Network to investigating breaches
of the Australian Consumer Law. The work that I do is
not only extremely interesting and often topical, but it is
rewarding knowing that I am assisting both businesses and
consumers in understanding and abiding their rights and
responsibilities in the competitive market.
In terms of drawbacks, it might be said that acting as a
member of a very large organisation means that close, long
term professional relationships are perhaps less likely to
develop. This has not been my experience, but it is possible
in any very large organisation. ♦
Thank you to Maxwell Daly for talking to us for this article and
to the ACCC for agreeing to allow its publication.
This article is drafted for the sole purpose and production
in Purely Dicta, The Melbourne Law Students’ Society
publication. It may not be published or reproduced without
express permission of the author.
THE MARKER
The ACCC has made a short fiction film called The Marker to
engage people at all levels of business about what cartel
conduct involves and the devastating impact that cartels
can have on participants. The Marker shows how cartels
can ruin relationships, careers, reputations and long term
financial security, and may ultimately land guilty parties in
jail.
•
Over half of business people do not know that cartel
conduct is a criminal offence; and
•
Despite being told the legal consequences, almost
one in 10 business people would be likely to engage
in cartel conduct if the opportunity presented itself.
Reproduced from the ACCC Website
The ACCC has made The Marker partly in response to
research conducted by the University of Melbourne Law
School in 2010 that showed:
11
L ife B eyond L aw S chool
The Offices of Cheet, Lai & Steel,
Melbourne, VIC 3000
Dear Graduate Recruitment Consultant,
Offer of Rejection to Clerkship Programme, 2012
Thank you for your interest in rejecting my application for a clerkship with Cheet, Lai & Steel. This
year there were many promising rejections, and yours was assessed against a pool of highly uninterested candidates.
After careful review I regret to inform you that I am proceeding with an interview with your firm.
Regrettably, whilst I would like to offer every firm an opportunity to reject me it simply isn’t possible
given the tremendous volume of applications I have submitted this year. This year over 50 firms in
Australia, Hong Kong and the United Kingdom competed for just two possible rejections.
Whilst I would like to extend to every firm the opportunity to decline personal feedback I am regrettably unable to do so, given the sheer variety of reasons given for each unsuccessful rejection. Some of
the reasons that your rejection was unsuccessful this year include your requirements of:
•
A High Court Justice’s reference;
•
Cheryl Saunders’ grade point average;
•
Perfect speling;
•
5 years experience during my 3 year degree in defusing land-mines in the developing world;
•
A heart-felt but commercially adapted anecdote of how I’ve made a lasting difference in the lives
of others by my mid-20s;
•
‘Commercial Awareness’ including a knowledge of inherently private transactions that by their
nature are not disclosed to the public, and by disclosure would be a serious breach of ethical and
fiduciary duties by any lawyer involved;
•
Familiarity with commercial and financial law from my 12 weeks of Obligations and Contracts
respectively, and my background as a Bachelor of Psychology;
•
Familiarity with your firm’s culture, which appears to be the website you copied from another
unsuccessful rejection candidate interspersed with quotations from my undergraduate management
textbook and pretty colours.
Accordingly, I wish you every success in our future relationship and hope that you were successful in
your rejections elsewhere. I invite you to apply to reject me again as a clerk or graduate trainee in 2013.
Sincerely,
C. W. Rumons
Matthew Curnow
12
Kick-StartingYour
CareerAfterRejection
Benjamin Hine
H
ayley is a South Australian lawyer who did not obtain an
immediate graduate offer as a lawyer upon graduation.
She speaks openly about her path to securing a position as
a solicitor after graduating.
Did you intend to practice while studying law?
Yes. I have always wanted to practice law and my previous
study and work helped prepare me for this role. I worked in
case management and social work at Families SA prior to
studying law. I love the courtroom and the criminal justice
system is my passion.
When you were not successful in obtaining a legal practice
position, what prompted you to accept a position outside
legal practice?
I knew that finding a legal position straight out of university
was going to be difficult. Positions at law firms are rare and
very competitive, increasingly so in the past few years. I
knew that in order to fulfill my passion to practice I would
need an ‘edge’ over other graduates. I had studied a double
degree which I knew would be useful, but many students
opt for a double degree (and some universities require it!)
so I knew I would need to do more to distinguish myself.
I decided to look for position in workplace compensation
as it is not a popular field. I applied at various firms and
non-practice roles and accepted a position in a large
insurance company as a case worker in injured worker
rehabilitation. Within my role at the insurance company,
I gained additional inside knowledge into the workers
compensation system, legislation and case law. Being a
successful lawyer involves far more than knowing the law,
relevant rules and procedures. It is important to be able
to manage client relationships, conflict and competing
priorities. By accepting a position as a case manager
I was able to develop my skills in client interviewing,
negotiation, building rapport with clients and stakeholders,
administration and case management as a whole.
When at your non-practice job, what steps did you take to
improve your chances of entering practice?
During my first week as a case manager I approached the
Department Manager and expressed my interest in the
legal disputes team. Over a casual coffee I told him my
strengths, my law degree, previous volunteer experience
in an industrial relations legal centre and how I could
contribute to this team generally. After successfully making
my intention known and subsequently working hard, I was
moved into the legal disputes team within 2 months. In
the legal disputes team I was in constant communication
with clients, solicitors, doctors, rehabilitation providers and
the Industrial Relations Tribunal. I further networked with
solicitors at every available opportunity. I attended all law
society CPD sessions, private firm functions and university
topical debates where possible.
How many law jobs did you apply for and what was your
approach?
I stayed at the insurance firm for just over 6 months and
then started applying diligently to all law firms in the
areas of workplace compensation, criminal law and family
law. I mailed over 200 applications which focused on my
strengths and why I would be suited to their firm. It was
crucial that I draw the links of my particular skills and the
suitability of them to that firm. I also emailed about 50
applications. I contacted all of my networks, and enquired
about graduate solicitor positions. I would receive rejection
letters every week, which some could consider depressing,
but I looked at it as a game. I knew that with each rejection
I would come closer to succeeding. I remained positive,
and even received a letter stating due to my constant
persistence I would be granted an interview. Persistence is
the key to gaining employment.
Any other points worth mentioning for students who are
contemplating accepting a non-practice job with a view to
later entering practice?
Many graduates finish a law degree and expect to be hired
by their dream firm without delay. However, I think there
are some real benefits to going into a non law position once
graduating and after about 6 months or a year moving into
the legal field. The key is to go into an area that is surrounded
by legislation or case law, whatever area that may be. Make
it your own and embrace the position. Entering the legal
field is a marathon not a race. Every step in your career is an
experience that you can learn from, even if it is not directly
law. Look for the positives in the position and you will go
far. And never underestimate the power of networking. ♦
13
T he I ssues
HIV
Anonymous
I
hadn’t seen her in a few weeks. She had been sick and it
was taking a long time for her to get better. She thought
she had the flu. Those were the symptoms anyway but no
matter what she tried she didn’t seem to be able to shake
it off. When a rash had started to develop she had wisely
decided it was time to check in to the local hospital.
I was pretty busy at the time with the usual summer
activities of work and parties, enjoying the brief break from
university. I was concerned about her and wanted her to
get better but really we were only seeing each other very
casually. The extent of our relationship was regular sex with
sporadic texting in between. At any rate, surely she would
start to feel better soon.
Then she called me.
I could instantly tell something was wrong by her voice, it
trembled and I could hear her barely choke back tears as
she told me the single most terrifying thing that anyone
has ever said to me: She told me that the hospital had run a
series of tests and she had come back positive for HIV.
The Beginning
Why was this happening to me? Australian girls don’t
have HIV, especially not private school girls who attend
university. HIV was supposed to be a disease that existed in
the abstract, or the 80s. I was aware that it was real; people
were dying, there were fundraisers, I bought a ribbon once
but nothing in my life had prepared me for dealing with HIV
on such a personal level.
Her voice snapped me out of my own self-destructive
thoughts. She was apologising to me and my heart instantly
broke. Whatever I was going through didn’t compare
to what was happening to her. Her life had just changed
forever and now she was crying with guilt at the thought
she may have infected me too. I managed to put aside my
own worries momentarily to attempt to reassure this girl
who just a few weeks earlier I had been holding in bed. She
told me she expected me to be angry with her but anger
was one emotion I never felt through the entire experience.
I didn’t want to know how she got it. It wasn’t my business
and most importantly I didn’t want to force her to tell me.
However she had become infected was a mistake that she
had to live with her for the rest of her life. Any anger from
14
me would not make her feel worse than her guilt already
did. What mattered was that she got the support she
needed and I got tested as soon as possible. We finished the
call quickly; there was nothing else really to say. She was
devastated and I was well on my way to an anxiety attack.
The Aftermath
The first person you call in a crisis is the best reflection of
who the important people are in your life. My first call was
of course to Mum. I was crying by the time she picked up
the phone and blurted out everything I had just been told.
Her response was exactly what I needed. She simply said
she’d be right over and everything would be ok. It was past
midnight now and I paced the backyard chain smoking
until she arrived.
Before, her hugs had always made me feel like everything
would be alright; this time was different. I could tell that
she was genuinely scared for me as well, and probably
knew even less than me about the disease I was potentially
facing. The best thing she did for me that night was holding
back the questions I knew she wanted to ask. Who is the
girl? Did you use protection? How many times did you
sleep with her? How come I don’t know anything about
this girl? Instead, we sat down at the computer and began
to do what should have been forced upon me at high
school, learn about HIV. The good news was that the risks
of transmission were low and typically men were less prone
to infection than women (just another example of where
women are disadvantaged in life for no other reason than
their gender). The bad news was that there had to be a
three-month gap between the exposure incident and
accurate test results. Some countries have reduced the wait
to six weeks but three months is still the recognized wait
time to be sure that there has been no infection.
A quick glance at the calendar and a few minutes of
rough calculations later and I worked out the last time I
was exposed. Seventeen days. How on earth was I going
to make it through the next day let alone the next month
let alone the next ten weeks without knowing? I couldn’t
believe that in this day and age there was no faster way of
testing available to me.
The Wait
I’m still not sure how I got through the wait for those results.
Clearly dating was off limits, if I wasn’t sure of my status then
there was no chance I would endanger somebody else. I
didn’t want to tell my friends even, there was nothing they
could do to help and the last thing I wanted was them to
worry about me as well. I did end up confiding in a handful
of my closest confidants for purely pragmatic reasons; I
wanted to avoid the inevitable harassment that would
come from retreating into isolation for several months.
As time passed the instances each day when my mind did
not think about HIV became more common. As cliché as
it may be, time is one of the best healers and I was able
to slowly focus on other things besides my results. Not a
day went by however where I didn’t research HIV on the
Internet. The more I read and learnt the more I realized
how little I knew about such a serious threat to people
everywhere.
As I sat waiting in the doctor’s office I started making
outrageous promises in return for that negative test result
I so wanted. I am not sure who I was wheeling and dealing
with but they were subjected to outrageous promises to
never sleep with a girl again or to commit the rest of my life
to serving others. As my wait became unbearably long with
each passing second, I became more realistic and earnest in
my prayers. When my name was finally called and I followed
the doctor into his office I made a simple promise to myself;
to try and treat my health with more respect if I could just
escape this one instance.
is something to be ashamed of, but because unfortunately
there is still a stigma attached to HIV and my friend deserves
to share her story when she's ready. Why did I feel the need
to write this article? I eventually told my friends about my
exposure and results because I could not stand by and hear
about their unprotected sexual encounters any longer.
There is an ingrained ignorance within young Australians
and I too was guilty of that same crime. Hopefully this
article though goes some way to educating readers about
the harsh reality that anyone can contract HIV or other
sexually transmitted diseases.
For many people, acquiring HIV is symptomless and can
lay dormant for up to ten years before any outward signs
become visible. As well as using protection there is a need
to encourage testing in young Australians as no matter
how safe you believe a partner to be, the reality is that
anyone can become a victim of HIV. Rather than adopting
scare tactics let me just speak from the heart and say that I
was motivated to write this because I want to help even in a
small way to stopping others going through the agonising
uncertainty that I endured. The information is out there and
education shouldn’t have to wait until it is too late. Love
each other, be safe and get tested regularly. ♦
The Result
For the record, it was negative. I felt born again as relief
flooded through my body and I could not stop smiling as I
breathed out a breath I did not know I had been holding for
the past ten weeks. The handful of close friends I’d confided
in needed to be told the good news but first I wanted to
celebrate with mum. She had been with me every step
of the way, sharing my sleepless nights and my worry
and I imagined her face awash with relief as we shared a
celebratory moment. The reality was different. She was over
the moon but I found my own mood couldn’t match hers.
As soon as the worry of the wait was over my mind instantly
turned back to the girl who had not been given the same
lucky break that I had. For the past ten weeks I had tried
everything I could to not think about her but now she was
all I thought about again.
The Lesson
Writing this article is the culmination of my experience. I
would love to say that it has been cathartic but the truth is
that each word has brought back the same feelings of guilt
I felt on the day I got my results. Guilt that I got a second
chance while the girl I was with is still dealing with what is
effectively a life sentence.
This piece will be submitted anonymously, not because it
15
T he I ssues
HIV — TheFacts
What is HIV/AIDS?
H
IV stands for Human Immunodeficiency Virus. HIV is an
infection that attacks the immune system and weakens
the body’s ability to fight infections.
Without treatment, after some years, a person who has HIV
can’t fight off some infections and cancers. This stage of HIV
is called AIDS (Acquired Immune Deficiency Syndrome).
There is no cure for HIV. An infected person can pass HIV on
to others for the rest of their life.
How do you get?
There are three main ways to become infected with HIV:
•
By having unprotected anal, vaginal or oral sex with an
infected person. Unprotected sex is sex without using
a condom or dental dam.
•
When infected blood gets into another person’s
bloodstream.
•
From an infected woman to her baby, during
pregnancy or birth, or from breastfeeding.
Unsafe behaviours
The highest risk for both males and females is unprotected
anal sex. Unprotected vaginal sex is also a risk.
Sharing injecting equipment, particularly needles and
syringes, can put HIV directly into your bloodstream.
You are also at risk if your sexual partner shares injecting
equipment, even if you don’t.
Unprotected oral sex is a risk, particularly if the mouth or
genital area has any cuts
Signs and symptoms
Soon after being infected with HIV, some people feel as
if they have the flu: fever, headache, tiredness and a rash.
Others may not have any symptoms. That’s why, if you
could be at risk, an HIV test is the only way to know if you’ve
been infected.
People with HIV can feel and look healthy. Many do not
realise they have it because they don’t see or feel anything
wrong. Without knowing it, they can pass HIV on to their
partners.
As the virus keeps attacking the immune system, a person
will develop symptoms of the disease. These include
constant tiredness, swollen glands, rapid weight loss, night
sweats, memory loss and diarrhoea.
These symptoms can last for a long time. When the immune
system is badly damaged, cancers, other infections, and
brain damage can occur. This is called AIDS.
Checking it out
The only way to find out if you have been infected with HIV
is to have a blood test. However, for a short period just after
HIV enters the body, it can’t be picked up with a test. So if
your result is negative, you will need to have the test again
after three months.
If you are having a test, you will be given information and
be able to ask questions before and after to make sure that
16
if used correctly with a water-based lubricant, help
prevent fluids passing from one person to another.
Always use a condom and dental dam until you are
totally sure that both you and your partner do not
have an STI.
you fully understand what both a positive and a negative
result mean.
The doctor will give you the test results face-to-face, not by
phone or letter. All information about the test will be kept
confidential (private).
•
Don’t inject drugs. If you do, never share needles,
syringes, filters, water or spoons. Wash your hands or
swab your fingers before touching another person’s
injection site. Always use new, clean needles and
syringes. You can get these from most chemists,
needle and syringe exchange outlets, and at country
hospitals after hours.
•
Pregnant women can get treatment to reduce the chances
of the baby getting HIV — you must tell your doctor if
you’re pregnant and have HIV.
Limit your sex partners. The fewer people you have sex
with, the lower the risk of having sex with someone
who has HIV. Have a long-term relationship where
neither of you is already infected, and neither of you
have other partners.
•
There are services for people with HIV that provide medical,
social, emotional and other forms of support —
­ some are
listed at the end of this fact sheet.
Before having any body art (such as tattooing or
piercing) make sure the body artist uses only sterilised
equipment, and new razors and needles each time.
•
Don’t share personal items,
toothbrushes and dental floss.
•
Have regular STI check-ups.
•
Alcohol and other drugs can affect your sexual
behaviour. If you are under the influence of alcohol or
other drugs, it may be better to avoid sex.
If you do have HIV, all your sexual partners will also need
to be checked. This is always done carefully, respecting
everyone’s confidentiality.
Treatment
Currently, there is no cure for HIV. However, the illness can
be managed. Many people with HIV live for years, with daily
treatment. This is why, if you are at risk, you need to get
tested early.
Protecting yourself and your partner
The safest ways to protect against HIV and other sexually
transmitted infections (STIs) are to:
•
•
Always practise safe sex. Safe sex means avoiding
sexual contact where the semen, blood or vaginal
fluids of one person passes directly into the body of
another person. Try alternatives to penetrative sex,
and ways to have sexual enjoyment, without putting
yourself and your partner at risk.
Always use condoms and dental dams during sexual
intercourse and oral sex. Condoms and dental dams,
such
as
razors,
Talking about STIs can be difficult, but any person you have
sex with has a right to know if you have an STI. Discuss it
when you are feeling relaxed and confident, not just before
you have sex. Your partner will appreciate your honesty and
that you don’t want to infect him/her. You have the right to
know if they are infected, too. ♦
17
T he I ssues
Dickheads’ Guide
Volume II
What Not to Post on Facebook
During Take-Home Exams
Rule 1
by Pat Easton
Any list of dos and don’ts must never, ever suggest a Fight Club sequel.
Rule 2
Do not post on Facebook during a take-home exam about your level of completion.
Rule 3
Any student at Melbourne Law School who posts on Facebook about a take-home exam is hereby known as
a ‘dickhead’ if:
•
they also exhibit signs of being near completion; or
•
they lament the amount of time left to agonise over their near-completed or completed work; or
•
they kid about being completed; or
•
they refer to looming courses in the subsequent semester.
Rule 4
Any student who, whilst not satisfying a criterion of Rule 3, repeatedly posts on Facebook during a takehome exam and is suspected of subsequently attaining a mark above 80 shall be placed on ‘Dickhead Watch’.
Rule 5
Any student that posts a status of ‘Finished!’ or any variant thereupon, with more than 25% of time remaining in the exam shall be presumed to be a ‘Massive Dickhead’.
Rule 6
Overly-considered updates regarding the torture of take-home exams are prohibited.
Rule 6A – exception to rule 6
Overtly sanctimonious posts for the purpose of preventing whole-cohort paranoia.
1. Signs of being ‘near completion’ include but are not limited to:
• asking technical questions about the online submission procedure;
• specifying a remaining word count of less than 10% of the total word
limit; and
• remarking about, commenting upon, alluding to or referencing the
AGLC or referencing generally.
2. Ibid.
3. Illustrations of such lamentation include: ‘Sweet, I still have 15 hours to
do the exam. Piece of cake… did I forget something?’
4. Example: ‘I finished on Friday night. I’ve just been kicking back and re-
18
5.
6.
7.
8.
laxing, sipping on some lemonade, eating milky ways and thinking about
how easy the property exam is going to be.’
Example: ‘Enjoy tonight everyone cos (sic) our Property text book just
arrived in my mail and it’s absolutely disgusting!’
‘Take-home exam’ shall include the final weekend before the Legal
Theory essay is due.
The onus of rebutting the presumption rests with the student.
Pugnacious posts such as the following may also fall under the Rule 6A
exception: ‘Next person to update their status saying they’ve finished and
submitted is defriended.’
CensorFacebook,
EnsureJustice
Lachie McKenzie
S
hould we censor Facebook?
We used it to help the ‘Find Jill Meagher’ campaign,
which went viral and cohered a shattered community.
Now that Jill has been found, this powerful medium could
be jeopardising the case against her alleged rapist and
killer.
Even before Meagher was found, people were talking
about sexual assault, dangerous men around Brunswick,
and about stopping violence against women.
Many women who previously felt they couldn’t talk to
anyone apart from their friends started reporting their
experiences to the police, who couldn’t ignore their claims
this time.
Many men were confronted by the sheer scale of violence
women are made to fear at the hands of their brothers.
‘Find Jill Meagher’ was a clear example of how the collective
power and wisdom of the public can be used for a social
good.
How many innocent women were burnt at the stake
for the crime of looking odd, owning cats, or having an
unfortunately cackling laugh?
How many political dissidents have been disappeared for
‘crimes’ we would applaud today?
What about murder? How many people have been framed
for a murder they didn’t commit? Even someone admitting
to a crime isn’t enough. They might have been blackmailed
or had their family threatened with retribution.
The point of the legal system is to prevent these injustices
from happening.
We all felt victimised by the Jill Meagher case. Women felt
doubly blamed when men started warning them about
walking home alone and dressing in a certain way. Many
men were outraged to be associated, if only by sex or
gender, with these comments.
Many victims were thirsty for justice.
About a week after Meagher disappeared, police arrested a
41-year-old man from Coburg.
But the mob is quick to anger.
Facebook pages appeared calling for public torture, public
execution, rape as punishment, and torture of the family
members, of the alleged killer.
They questioned him overnight and formally charged him
with the rape and murder of Jillian Meagher. He will appear
in court on January 18 for a committal hearing.
Twitter carried the same violent messages.
That’s all anyone knows. It’s all anyone can know. The
commentary about the case should stop there.
It was a sorry mix of grief, anger, and poor education.
Clearly it didn’t.
This kind of mob mentality - the need for blame and
punishment - seems to have its roots deep in our psyche.
People feel quite strongly that the Internet should be free.
Even with their profiles set to public, people act as though
they are anonymous, attempting to absolve themselves
of responsibility for what they say. Internauts like to think
they’re Galileo or Guy Fawkes - “saying what everyone’s
thinking.”
When it overcomes the inertia of social convention, the mob
calls for a breach of the normal rules. It’s been happening in
human societies forever.
Here’s the problem. If a defence lawyer can successfully
prove that the public discourse around a case could
19
T he I ssues
prejudice a jury against their client, they can have the trial
delayed and possibly dismissed.
Victoria Police Chief Ken Lay was appalled at Facebook’s
behaviour in relation to the Jill Meagher case.
This seems ridiculous, but only because of the innate
assumption that somebody on trial is probably guilty.
Speaking to 3AW’s Neil Mitchell, Lay said that Facebook
demanded a court order before considering taking down a
prejudicial page relating to Meagher’s alleged killer.
This assumption is in direct contradiction to our justice
system, which assumes innocence.
It’s a tradition that we should cherish and fight to protect.
But as people are more connected than ever, it’s a legal
tradition under threat.
Conversations that once took place in coffee houses and
living rooms now happen on a global forum. Anyone with
a computer (most people in Australia) can add their weight
to the momentum of public opinion.
The page’s administrator took it down before that was
necessary, but the damage was already done. And it went
further than that. Blogs, Twitter, and Wikipedia abounded
with prejudicial, permanent, comments.
If a newspaper published the comments on Facebook it
would be sanctioned. So why should Facebook be any
different?
Society changes before the law does.
On Friday 6 October, Australia’s attorneys-general met to
discuss this problem.
What many don’t realise is that they could be liable for “sub
judice contempt” for Facebook comments and tweets.
As a result, Victorian Attorney-General Robert Clark will
lead the group charged with tackling the problem. Clark
emphasised that in this area, the law goes “well beyond
state boundaries.”
“Whatever happened to free speech?” they vehemently
protest.
“I don’t speak Latin,” they rightly point out.
They will set “national guidelines” for social media, but they
are also calling for legal teeth.
R.I.P
JILL MEAGHER
FACEBOOK.COM/RIPJILLMEAGHER
RIP Jill Meagher
321,435 likes
183,132 talking about this
Community
“Jill was a strong, beautiful person with a big personality.” RIP Jill.
R.I.P
JILL MEAGHER
321k
FACEBOOK.COM/RIPJILLMEAGHER
About
20
20
Photos
Likes
We have a deep aversion to censorship and stifling free
speech. But many don’t understand that free speech
involves relative rights, not absolute rights.
Privileging one person’s right to speak degrades another’s
right to speak.
It is illegal to tip-off an investment banker before a company
is about to float. It’s called insider-trading. We don’t hear
protests for free speech here for a good reason.
Free speech is about access to information and balancing
individuals’ right to participate in public debate. In the
case of the banker, tipping them off gives them a relative
advantage at everybody else’s expense.
Similarly, by posting comments on Facebook about the
Meagher case, we are privileging uninformed, often
inarticulate, and usually prejudicial opinions over informed
and rational opinions formed upon examination of actual
evidence.
The balance of rights should always be in favour of the wellreasoned truth, especially where the consequences involve
a person’s life and the integrity of the justice system.
Digital media has the dual effect of democratising both free
speech and dissolving responsibility for speech.
Police cannot feasibly prosecute 100,000 people for sub
judice contempt. So the mob has safety in numbers.
But what about the publishing platforms like Facebook and
Twitter?
In Victoria we’ve already seen very public derailing of trials
because of prejudicial media attention. Radio broadcaster
Derryn Hinch, despite his admirable intentions, delayed the
trial of the now-jailed paedophile Michael Glennon.
Melbourne lawyer Rob Stary, whose firm defended
convicted drug boss Tony Mokbel, points out that
social media comments could not only delay a trial, but
leave the publisher liable to prosecution for using a
“telecommunications device to threaten, abuse or harass a
person.”
Stary adds that it can lead to the accused “being released
on bail because the trial is stayed either permanently or
for an indeterminate time,” to the detriment of the public
interest and the need for swift justice.
We must decide now as a society, as lawyers and lawmakers, what kind of balance we want between free speech
and the right to a fair trial.
In determining this balance we must consider the rights of
the accused, the rights of the victims and society, and the
integrity of the legal system.
Surely a better way to honour the memory of victims of
heinous crimes is to deny the perpetrators a technical
defence. ♦
InformationSheet:ContemptofCourt
Contempt of court is concerned with words or actions that
interfere with the administration of justice or that constitute
a disregard for the authority of the court. It operates as a
significant restraint on what the media can publish about
particular legal proceedings and the courts in general. In
Australia, contempt law remains almost entirely in the
province of the common law and is essentially uniform
throughout the country.
The object of sub judice contempt
The object of the law of sub judice contempt is to prohibit the
publication of material which might prejudice a particular
civil or criminal proceeding while that proceeding is still
pending. Such publications are regarded as contemptuous
because their tendency, and sometimes their object, is to
place at risk the due administration of justice with respect
to a particular proceeding.
The public interest in protecting the administration of justice
can conflict with the public interest in freedom of speech
and freedom of the press. The law of sub judice contempt
seeks to strike a balance between these competing values.
How that balance should be struck is a matter over which
opinions in a democratic society will inevitably differ. As a
generalisation, it can be said that in cases where the public
interest in the administration of justice conflicts with the
public interest in freedom of speech, the common law has
traditionally favoured the former.
For more information see: Butler & Roderick, Australian
Media Law, 4th ed, Thomson Reuters.
21
L ifestyle
HelloYogie
Jess Dawson-Field
‘D
ownface dog’. Into ‘cobra’. And let’s finish with
‘sleeping hero’. I never thought I would be one of
those yoga people. Despite being involved in sports teams
at school, the idea of meditation and balancing exercises
made me anxious. But then I thought: celebrities do it,
Oprah does it, hell, even The Beatles did (apparently). So
after a stressful day four years ago, I took myself along to
my first yoga class and I have never looked back.
Now, I am more coordinated which is no mean feat for a
person who still struggles with the difference between
left and right (embarrassing, I know). Muscles I didn’t even
know I had have enabled me to attempt things I never
knew I could. And my flexibility, balance and strength have
improved four-fold (true fact).
Apart from the physical side, yoga has taught me a few
other lessons. Firstly, you cannot judge your own worth
against someone else, be it in yoga or life. Everyone has
their own strengths and weaknesses and you just have to
work within and realise your own limitations. Although
there is no real end goal in yoga, you need to be committed
22
and be prepared to work hard when it counts to keep
improving. Sometimes this means leaving behind your
fears , sometimes this means attending class even when
you don’t feel like it. And sometimes this means trusting
people to catch you when you fall, or prop you up in a
handstand.
Being a part of a class also reminds you that you can’t move
through life by being disconnected and insulated from the
world. For that hour or so you are part of a community
that has chosen to be in the same room, committed to
that activity. Being present, mindful and aware of others
has been an invaluable lesson particularly when life just
seems to keep getting busier. Although yoga is essentially
about yourself and your abilities, you can’t be part of a class
without being aware of others and what is going on around
you; much like you can’t go through life only looking
inwards. Finally, and most importantly, yoga has taught me
that sometimes when it all seems too difficult, it can help to
just breathe, smile and keep on going.
Namaste ♦
Eeny,Meeny,Miny,Moe
Claire Marshall gives us some guidance on the right coffee
to satisfy our plethora of moods
A
run-down law student is a biochemical mish-mash of
stress, sugar and caffeine. I credit success at the end of
semester to the latter- the glorious legal upper of coffee.
At home it’s cheap instant granules with sugar to mask the
taste of death and cat urine, but when out I indulge. Here’s
an easy guide to what you get with your coffee near law
school.
Need: an all-body experience.
Fix: Seven Seeds.
Down a little lane way across from law school is the
caffeinated babe-house that anyone with a bicycle,
tattoos and Pitchfork listed bands on their iPhone
will adore. With your specialty coffee comes beautiful
hipsters. They clutter the ever-packed tables with
laptops; sip Magics with their legs adorned with
RM Williams and ironically frilled socks, and take
your order while taking you in with smouldering
eyes behind thick-rimmed glasses. The coffee is
wonderful: blends matched to extraction methods;
and perfectly poured espresso.
Need: coffee with a conscience.
Fix: Kere Kere
If you’re not too scared of wandering onto main
campus and being eaten by a dreadlocked arts
student, Kere Kere delivers wonderful coffee with a
social bent. You can choose where the profits from
your cup go, and there are often a proliferation
of attractive economics types and moustached
professors hanging around. A place to ensure you’ll
sleep at night and perhaps bag a future husband, all
while drinking a beautifully poured, ethical latte.
Need: caffeine on a low-budget.
Fix: Pearls
Your meals for the past week between Commercial
Law and burgeoning insanity have consisted
largely of baked beans, instant noodles and cheap
chardonnay. You need a coffee with a good slug of
reality attached to it. You’re also not ashamed that
your drink of choice is a mocha with two sugars,
although you’d rather not have a hipster smirk about
it. Pearls will give you what you need, without the
pretence or contempt of surrounding cafes. Enjoy
your cup of chino.
Need: caffeine on a no-budget.
Need: quick service, no frills.
Fix: Porta Via.
This is the go-too for when you can’t stay awake
during contract law and need an immediate hit
without leaving the grounds for fear you’ll run away
and join the circus/a bikie gang. While the service
here is often sans a smile, and the music played is on
the cross side of cranky, you’ll get a fix fast. They also
have coffee cards, which makes me feel like I’m back
in suburban Canberra, but in a totally adorable and
economical way.
No money, no sleep? No worries. There’s an espresso
machine behind the Moot Court. Although I assume
it’s not for student use, there’s no sign saying so: and
if Thornton v Shoe Lane Parking taught us anything,
it’s that unless there’s notice on the outside you
should definitely drink the free coffee where you’re
going to fail your exams and end up on semi-naked
and aging on reality television if you don’t.
Note: the author does not condone stealing, but merely recognises
the limits of a law student budget.
23
L ifestyle
FiftyShadesOfGrey:IsTheSex
ContractLegallyEnforceable?
Yes, law school can even turn ‘porn for ladies’ into a boring
legal analysis
*First years, take note: this will probably be on your contracts
or legal theory exams. Lecturers are so transparent.
I
n case you’ve been living under a rock, or on level three,
or you’ve actually been doing your subject readings (in
which case, can you send your notes to lss-purelydicta@
unimelb.edu.au. Thanks!), Fifty Shades of Grey is one of the
biggest crazes in mainstream literature today. People like it
more than Twilight (thank God; those books were fucking
shit).
Those familiar with the books will know that one of the
central elements of the first instalment is the contract,
which is essentially used as a literary device to explicitly lay
out the terms of the intimate relationship insisted on by the
male protagonist, the eponymous Christian Grey. After the
female lead, Anastasia Steele, examined the contract, she
matter of factly stated “My research has told me that legally
it’s unenforceable” (she’s clearly a first year JD).
But is it?
True, it is certainly written poorly, but not enough so as
to render the contract null and void in its entirety. But
I’m getting a bit ahead of myself by jumping ahead to
the language and terms of the contract before looking at
whether the essential contract elements are present.
Let’s play contracts for babies (God, we’re smug).
Ok, there’s definitely been an offer: the drafting of the
contract and furnishing of it to Ms Steele. However, those of
you who have read the first book will be quick to point out
that Ms Steele never signed the contract so there was no
acceptance. Not to worry, Mr Grey has had his fair share of
risqué sexual encounters and informs us that other women
with whom he’s been ‘intimately involved’ (he’s clearly not
a first year JD), have signed the contract, so there has been
acceptance with another party.
What about consideration? Yep, it’s there! As we all know,
consideration can be a peppercorn, or a whip, whatever
takes your fancy. As for the consideration that Ms Steele
provides to Mr Grey, there are two theories. Under the
24
first, Ms Steele provides Mr Grey with the (immense)
pleasure of her company (kind of like an escort service, or
Baltic Shipping where they contracted for happiness and
enjoyment…although that was a cruise, not a porno).
Under the second, Steele works as a model/actress for Grey,
performing the kind of acting/role-playing that satisfies
the eccentric billionaire’s sexual deviations. Either way, it’s
valid consideration. And what consideration did Mr Grey
provide? The simplest theory is that Mr Grey provides a
service: “to allow the Submissive to explore her sensuality
and her limits safely, with due respect and regards for her
needs, her limits, and her well-being”. Wow, he is SUCH
a gentleman. Although that’s probably consideration
enough to form a valid contract, it never hurts to have a
back up. And that back up is monetary in nature. The
contract specifies that the dominant, Grey, is to provide
the submissive, Steele, with a clothing budget, a personal
trainer, and costs to cover beauty salon visits (um, where
can we find this guy?).
Since these costs are incident to the Submissive’s
performance under the contract, they cannot be
considered independent consideration. As those of you
who have read the second book know, Grey buys a car
for all of his “submissives.” In fact, he buys the same exact
type of car every time (seriously, how do we find him). It if
were understood at the formation of the contract that Grey
was expected to purchase said car for the Submissive, that
would constitute adequate consideration.
The parole evidence rule wouldn’t come into play here
because:
1.
There isn’t a merger clause; and
2.
Appendix 3 of the contract makes explicit reference to
outside evidence.
So we have consideration, but did the parties actually
intend to create legal – rather than personal – relations?
Well, the fact that such a contract was drafted to begin with
seems like a pretty clear indication of the legal relationship
created by the document.
There you have it: all four contractual elements are met!
But the contract is still unenforceable if its purpose is
unlawful. In other words, if the contract were for something
illegal – say, paying for sex – it would be unenforceable. For
policy reasons, we aren’t allowed to enforce contracts for
sex. Such a nanny state.
Despite common preconceptions to the contrary, the
contract isn’t for sex. True, sex is mentioned a lot. Sex. Sex
sex sex, sexy sex sex. However, if a court were to strike out
all of the provisions referencing sexual intercourse of any
kind, we’d still be left with a cognizable contract. Moreover,
any concerns about this being a contract for slavery
are unfounded. The dominant-submissive relationship
referenced in the contract is purely recreational; the
submissive is not actually selling herself as property.
So it appears that the contract is, for the most part, legal
and binding.
But how would one go about enforcing it, and what kinds
of remedies could he or she legally seek? Specifically, if
the Submissive’s consideration is “to allow [her] to explore
her sensuality and her limits safely, with due respect and
regard for her needs, her limits and her well-being,” then
the contract is a mutual services agreement. Under such
circumstances, a breach would occur if either party should
fail to perform one of the services required of them.
These provisions aren’t to be taken literally. Instead, they
merely lay out the expectations of the parties as to what
the Dominant/Submissive relationship would entail. It
is highly unlikely, then, that any portion of the contract,
when viewed as a mutual services agreement, is actually
enforceable as to nearly any of the specific terms. Rather,
the contract would be more akin to a liability waiver (which
is still a contract nonetheless).
Nevertheless, the second interpretation would view the
contract much more traditionally.
If the Submissive’s consideration is the pleasure of her
company, and Grey’s consideration is, the car he purchases
for all of his Submissives, the contract is of an employment
nature (especially in light of the specific contract term of
three months).
This certainly would make the contract far more enforceable
than the first interpretation, but, again, provisions such
as those that compel sexual performance would still be
unenforceable.
So what parts would be enforceable?
The Submissive would be in breach if she didn’t show up at
his apartment during the specified times and days (Friday
evenings through to Sunday afternoons), and, depending
on the judge, if she refused to participate in any of roleplaying specified in the contract.
The problem arises here because many of the provisions
detailing the services required under the contract are
unenforceable. For example, section 15.13 states:
Grey would be in breach if he never paid up.
The Submissive accepts the Dominant as her master, with the
understanding that she is now the property of the Dominant,
to be dealt with as the Dominant pleases during the Term
generally but specifically during the Allotted Times and any
additional agreed allotted times.
Should the Submissive breach, Grey would be able to
collect the cost of the automobile, probably minus any
work already performed by the Submissive (i.e., should
she breach after one month of performance, Grey could
collect 2/3 of the cost of the car). Should Grey breach, the
Submissive could collect the cost of the car for however
much of the term that she successfully completed.
This is obviously unenforceable because slavery is illegal.
The same goes with the provisions compelling the
Submissive to submit unwillingly to medical treatment, and
those requiring the Submissive to “submit to any sexual
activity demanded by the Dominant…without hesitation
or argument.”
Normally, it would seem that the prevalence of these
provisions in the contract (they constitute at least half of
the entire document) would cause a court to just declare
the contract void in its entirety. However, the contract’s
saving grace here is that it states “all that occurs under
the terms of this contract will be consensual.” In any other
kind of contract, this clause would seem superfluous; here,
though, it serves to reinterpret the provisions compelling
the Submissive to engage in any kind of behavior – sexual
or otherwise.
Given the headache that any judge would get trying to
make heads or tails of the mutual services interpretation,
the second interpretation would likely be the prevailing
one in court. This would mean that the Submissive would
be akin to an escort, and that Grey habitually retained
escorts prior to his meeting Ms. Steele. In other words, all of
Grey’s previous submissives would likely be viewed in court
as nothing more than his former employees. ♦
Purely Dicta would like to thank westlawinsider.com
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B usiness
CareerAdvice
FromWalterWhite
Marcus Hannah
B
reaking Bad’s antihero, Walter White, is a modern day
success story. He went from being stuck in a dead-end
job that payed him so little that he was forced to moonlight at a car wash, to earning 3 million dollars in a three
month period. How did he do it? He sold drugs, lots and
lots of drugs. Crystal Methamphetamine, to be exact. Ok, so
maybe he’s not the best role model, but that hasn’t stopped
us from watching in awe as the timid and weak high school
chemistry teacher transformed into ‘Heisenberg’; the
modern day Scarface. However, it wasn’t just intimidation
and dirty tactics that saw Walt’s drug empire soar, there
were also some solid business strategies on display.
That’s right, behind the rough exterior Walter White is
just a businessman looking to expand his business, albeit
one who wears a hazmat suit to work and has become
somewhat of an expert in knowing how to dispose of a
human body. Nonetheless, there’s a lot to be learnt from
the man (no pun intended). So here are 6 career tips I’ve
learnt from watching Walter White in action:
1. Weigh up the pros and cons
Just a few hours into the first season of Breaking Bad, Walt
is already faced with an impossible decision; whether or
not to murder the drug dealer tied up in his basement. To
help himself out, Walter scribbles down a quick pros and
cons list, regarding whether to kill him or not. Con: Murder
is wrong. Pro: He’ll kill your entire family if you let him go.
Sure, it’s not your everyday problem (if it is, you really need
to sort your life out), however there’s bound to be plenty of
hard-to-make decisions we all face at one time or another.
Just like Walter White, creating a quick pros and cons list is a
great way to weigh up your options. Hopefully your decision
won’t be as morally questionable though. Something more
along the lines of ‘Should I quit my job?’ is a question we
are more likely to face. Write down all the pros on one side,
the cons on the other, and compare them once you’re done.
Having it written down that way should help you make a
decision, and at the end of the day it should make you feel
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better about what you’ve chosen (unless your decision is to
choke a man to death with a bicycle lock. Let’s face it, you’re
going to feel pretty shitty after that no matter what).
2. Don’t be afraid to get your hands
dirty
Whether you are an employer, an employee, or anything in
between, there are going to be times when you need to get
your hands dirty, possibly both literally and metaphorically.
For Walter White, it’s safe to say his hands are probably a bit
dirtier than most.
Walt originally planned to stay in the background, doing
the cooking himself and leaving all the nitty gritty to his
partner, Jesse. However, anyone who has watched the show
will know that things didn’t quite pan out like that. Whether
it was disposing of a body in a vat of acid; going face-toface with crazed drug dealers; or executing child killers,
time and time again Walt has demonstrated that he is able
to do the jobs that no one else wanted to. He was willing to
get his hands dirty, or soaked in blood, as it may be.
The lesson that we can all take from this is that sometimes
you need to do the dirty work yourself. Employers look for
hard workers who can be trusted to get the essential but
unglamorous and often uncomfortable jobs done; the ones
that no one wants to do. It’s important to demonstrate that
you’re not afraid to get your hands dirty, and that says a lot
about your character and willingness to get the job done.
3. Never settle for less than the
absolute best
In the business world, it’s important to settle for nothing
less than the very best. Whether it’s a product or a service
on offer, customers and clients are constantly looking for
the best their money can buy.
By having the best product on the market, it allows you to
charge a premium price for your premium product. People
will generally pay more for better product or services, and
furthermore, satisfied customers become brand advocates
for you, spreading the word to their friends and family.
When it comes to Walter White, he only settles for the very
best, which in his case is 99% pure crystal meth. By selling
only the best product, he builds a reputation and gains
a huge market advantage. And that unique blue colour;
instant branding.
4. Choose your partners wisely
Growing desperate to expand his reach and sell his
premium product quicker, Walt realises that he needs to
find a distributor; someone who can supply their product
to a much larger audience than he and Jesse could ever
hope to reach by themselves. The business plan is solid.
Unfortunately for Walt, most of the distributors he decides
to pair up with turn out to be sociopathic murderers. It
definitely goes to show, you can’t be too careful when
picking your future partners. Even the most lucrative
business partnerships fall apart in time if they’re not built
on a solid foundation of trust and mutual respect. While it’s
definitely important to pick a partner with complementary
skills, it’s also wise to pick someone who isn’t likely to throw
you in the boot of their car and attempt to ship you off
to a superlab in Mexico. You can’t do a good deal with a
bad partner. Walter White found this out the hard way —
­
hopefully you won’t have to.
5. No half measures
Near the end of the third season, Mike, Saul Goodman’s right
hand man, offers some timely advice to Walter. That advice
is simply ‘no more half measures’. Although ultimately Walt
may take this advice a little too far, at its basis the advice is
sound, and definitely worth heeding. This applies whether
you’re a drug mogul or just a young upstart looking to
make a good impression at the workplace.
The lesson to be had is basically this: if there’s a job to be
done, do it properly. No employer is going to appreciate a
half-assed effort, especially if it means that they’re going
to have to do it over again. It’s lazy, and unattractive in
a worker. I know that in the Facebook and Twitter age,
where the average student’s attention span is rapidly
deteriorating, that it’s hard to stay focused on the one task
without wanting to wonder off or distract yourself by doing
something else. But if you’ve promised to dedicate yourself
to a task, just see the damn thing all the way through, and
do it to the best of your ability. Mike would be proud.
6. Make yourself irreplaceable in the
workplace
With the economy the way it is, redundancy in the
workplace is becoming a realistic and unfortunate reality
for many people. There’s less work to go around, and jobs
are being cut by the bucket load. However If it’s just your
job that is at risk of being cut, you can still consider yourself
luckier than Walter.
After having a disagreement with his boss, Walt discovers
that the only reason he hasn’t been killed yet is because
he’s needed to cook the product. The problem: Walter has
been inadvertently training a replacement who’s almost
ready to step up and fill his shoes. Walter quickly realises
that the only way to keep his job, and thus stay alive, is to
make sure he’s the only one able to do the job.
The same applies to all of us; make yourself irreplaceable in
the workplace, and it will keep your head off the chopping
block (hopefully in a more metaphorical sense than in
Walter’s case). Scarcity leads to job security and usually
higher income as well. If your talents aren’t a dime a dozen,
and you can do what few others in the workplace can, then
you can breathe easy. You’re probably safe. ♦
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E ntertain m ent
LawSchool’sGotTalent
Andy Chislett
M
any people say that law school is where the uncreative
and untalented go to while away their miserable
existences with their heads buried in dusty books. To those
people I have one thing to say, jealousy is a curse. Having
attended the 2012 edition of Law Schools Got Talent and
witnessed act after act prove themselves to be exceptions
to this rule, I can honestly say that the Melbourne University
Law School boasts an unbelievably talented student body.
Granted the unlimited bar tab may have in some way
assisted in whipping the crowd into their eventual frenzy
but the majority of credit must go to the volunteers who
bravely faced their classmates and performed in front of
them.
The night began in a blaze of sexually charged danced
moves put on by Melbourne’s hottest new boy band
LAD5. Reports of swooning women and hysterical fainting
are evidence that Australia’s answer to One Direction will
soon too become a global phenomenon. However, given
that LAD5 were not part of the competition the feverish
demands for an encore were ignored and the 1st Act began
in earnest with Nick Wolstenholme delighting the crowd
with his stirring rendition of Nessun Dorma. Opera had
never been sexier and both the crowd and judges were
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now on notice about the high quality of performances they
would see on the night.
The Hi – Fi bar has been home to some of the world’s
greatest live acts with Fun, Boy & Bear, John Butler and
Xavier Rudd an example of the quality of performers who
have graced the same stage as our law school contestants
within the past few months. It is fair to say that after LSGT
2012 the Hi – Fi will be equally as proud of groups such as
‘The Dissenters’ and ‘Uke Trio’ who rocked the crowd just
as hard as any of their more acclaimed contemporaries.
After more stunning performances of crowd favourites
‘Born to Die’ and ‘Jar of Love’ the crowd was beginning to
feel overwhelmed by the quality of performances in front
of them and an interval was necessary so everyone could
regroup and gather themselves before the second act.
With the crowd (and hosts) now beginning to feel the
effects of LSS generosity the mood of the night changed
somewhat as the packed house began to party hard. The
timing was perfect to introduce resident heartthrob Alister
Lloyd whose smooth vocal stylings were the perfect start
to what would prove to be an equally impressive second
act. The truly eclectic nature of the law school is reflected
in the choice of covers throughout the second act with
Grease, The Doors, Kanye West and Robbie Williams all
being performed to rapturous applause. Even using words
such as ‘cover’ could mislead readers to the quality of the
performances on the night, if any of the original artists
were blessed enough to be in the room they would have
agreed that the renditions were themselves works of art
deserved of critical acclaim in their own right.
The judges were in an unenviable position as they retired
to consider their verdict. The crowd was not left to wait in
silence as the professionals took over and took the quality
to an even higher level, if that was even possible. When the
judges returned it was time for the results. The moment
everyone had been waiting for had finally arrived and the
results were…. not important. What really matters is that
everyone had fun and it would be unfair to try and separate
the performers when all of such a high quality. The judges,
Katy Barnett, Jason Bosland and Ant Freeman do need to
be thanked as they took time out of their busy schedules
to adjudicate the night. Thanks also to Daniel Osvath for
hosting the night and ensuring that the crowd was kept
laughing in between. One thing we can all agree on is that
Melbourne Law School truly has talent.
A special thanks to the following superstars for volunteering
their talent; LAD5, Leopold Bailey, Peter Brookes, Mason
Clarke-Jones, Jock Martin, Jason Abramowski, Nick
Wolstenholme, Kat Yang, Jenny Zhao, Christian Camilleri,
Wendy Liao, Oliver Matas, Winnie Mok, Alister Lloyd,
Madeleine Miller, Cameron Bloye, Benjamin Muller, John
Harris, Renata Blythe, Tessa Sidnam, Kate Lishman, Henry
Hedinger, Charles Hopkins, Tim Hamilton, Ben Sturrock,
Harry Hookey, Pat Santamaria and the Raffaellas.
The night began with a tribute to Daniel Wright. Nothing more
needs to be said about the touching performance put on by
his friends and classmates other than that all who attended
were moved by the emotion encapsulated by the fitting song
choice. As someone who never had the pleasure of meeting
Daniel, I would like to thank them for their tribute as their
performance’s intimate nature allowed me to see the type of
person Daniel must have been to inspire such feelings in his
friends and classmates. ♦
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E ntertain m ent
Bernie:
AReview
Mika Tsoi
A
n assistant funeral director befriends then kills an
elderly widow. Hilarity ensues, and it does.
Marjorie questions Bernie’s manhood when he can’t and
won’t shoot an armadillo.
Some jokes you hear and they’re funny but you feel bad
about laughing. When I left the cinema after seeing Bernie,
I didn’t know how I felt; I wanted to enjoy having laughed,
but didn’t feel right about it. Normally, the limit is being
in two minds; I was in three. Apart from the humour and
darkness, the law parts were interesting.
Jack Black has never struck me as an actor. His performance
skills seem to consist of adjusting the volume knob,
higher or lower just as he did in High Fidelity: his normal
self, amplified. In this performance, he transforms himself.
‘Acting’ might ordinarily manifest itself in speech patterns
or facial expressions, but Black’s skills show themselves in
the delicate little walk Bernie takes as he turns his back
to the camera at the very end: a gentle man who had a
moment of madness. That is Bernie’s defense: emotional,
not legal.
To start at the beginning: the source of all good crime
stories are newspaper headlines: a million monkeys who
don’t type but make bad choices. They end up on COPS.
If the story is strong enough, salacious enough, gruesome
enough, they will also make it to the ‘real’ crime shows where
actors reconstruct the crimes and they show reaction shots
from those involved. Our man Bernie committed a crime of
renown - you see, it’s based on a true story.
The scene is a small town, Carthage, east Texas. The ‘east’
could be capitalised as is explained at the beginning; it’s
really like five different states, not including north Texas.
Much of the humour and pathos comes from the setting.
The flavour comes from the talking head interviews, given
by the townspeople. When Bernie is introduced, he’s a
super nice guy. In fact, he is an all-Texas assistant funeral
director: omni-competent. Bernie runs a demonstration for
student morticians, showing them the tricks of the trade;
he’s surprisingly good at the nails and the make up. He
sings, in funerals and in church; he’s generous so the people
love him. They say things I could not make up: ‘Bernie? Kill
her? That dog don’t hunt.’ It helps that they are played by
real residents of Carthage, Texas. This is not to say the leads
aren’t terrific; they are. One Bernie line, showing his coffin
salesmanship: ‘I’m not sure about cremation. I don’t know
about the idea of someone spending eternity in something
the size of a motel ice bucket.’
Bernie conducts Marjorie’s husband’s funeral then wants
to make sure she’s coping. Really? Really? Bernie helps us
out by asking, ‘Was Bernie gay?’ and ‘Was it romantic?’ After
that we can focus on Bernie and Marjorie’s relationship and
the motive for the crime. They become close and travel. She
employs him as her assistant and scene after scene provide
the reasons why we do not hate Bernie when he shoots
Marjorie; my favorite is when Chekov’s gun is planted:
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The townspeople cast Bernie’s actions as, ‘she had it coming.’
While not a defense in law, an opinion on Majorie, played
by Shirley MacLaine cannot help but be coloured by the
strangest part of the whole deal: we get everything from
Bernie’s point of view, or yet more removed. We can never
know what Majorie was actually like. Would the nicest man
you’ve ever met lie to you? Why would he? Why wouldn’t
he? Marjorie, by MacLaine, through the eyes of Bernie, is
Lady Macbeth without the ambition. She’s just as complex,
though lacking in guilt. She’s the best kind of monster the one not weakened with a sob story. MacLaine is as
domineering as Black is stubbornly kind. Their relationship
cannot help but drive the movie.
When MacLaine is gone, Matthew McConaughey enters as
the ambitious District Attorney. A DA desperate to make
noise as the‘law’, he takes the case of the man everyone loves
and is clearly guilty. I have never thought of McConaughey
as capable of nuanced emotions. He’s the guy that can’t
help but afflict girls with cases of infatuation for him or
he’s playing the crusading lawyer. This time, his crusade is
presented as a modern view of an ancient crusade - not a
popular one. As a man running for re-election, he wants to
make some noise. Unfortunately, people keep telling him
they won’t convict Bernie. What are you to do with a town
subverting the jury system? Here is the thorny legal issue.
Bernie presents McConaughey pushing his boulder up the
wrong hill, a problem he solves with aplomb.
In the end, it all plays out as a Greek tragedy: the inevitable
downfall of this man and all the pieces matter. It’s one of
the funniest bizarre tragedies I’ve seen. To me, it is worth
your time and effort. ♦
APoem
Pat Santamaria
I
forgot (to write the poem you asked me to write for
Purely Dicta).
Can I do something still or in the next few days?
…No Pat, we have to go to print. Thanks anyway. ♦
Photo: Ben Sturrock
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